forthcoming scholarship

September 27, 2010

* Forthcoming scholarship

[Note: ok, so this first one is not directly relevant to national security law…but I think it has tangential relevance.  The part that caught my eye was this sentence: “The divide between the over- inclusive criteria for gang membership employed by law enforcement and the decidedly more complex and nuanced relationship between youth in neighborhoods dominated by street gangs described by social scientists is more than an issue of academic interest.”  Seems that one might say something similar about the elusive concept of “membership” in a terrorist organization in at least some settings.] "Fear Itself: The Impact of Allegations of Gang Affiliation on Pre-Trial Detention"

Email: babe.howell

This article examines the impact of allegations of gang affiliation on the right to reasonable bail guaranteed by the Eighth Amendment.

In criminal courts, the phrase “the defendant is on a gang list” often eliminates any possibility of release or reasonable bail, regardless of the merits or severity of charges. This is the case whether or not the arrest is related to gang activity. A person who would otherwise be released to defend himself, during which time he can go to work or attend school, will face bail that will all but insure his pre-trial incarceration if the label “gang member” is affixed to him at the bail hearing. This is so because the label triggers fear of gang violence.

Allegations of gang membership are often inaccurate and tremendously over-inclusive of young men of color. These allegations are simultaneously substantially under-inclusive of women and white men. The divide between the over- inclusive criteria for gang membership employed by law enforcement and the decidedly more complex and nuanced relationship between youth in neighborhoods dominated by street gangs described by social scientists is more than an issue of academic interest. Depending on the jurisdiction, alleged gang affiliation can have a greater impact on bail, admissible evidence at trial, and sentencing than a prior conviction.

This article will confine itself to the impact of gang membership at the initial detention/bail determination for three reasons. First, the right to non-excessive bail is one of constitutional dimension. Second, although trial testimony about gangs presents a number of issues that merit exploration, the vast majority of criminal cases are either dismissed or resolved by plea. This is particularly so where the charges are less serious. Where misdemeanors or low-level felonies are alleged, the incarceration of the defendant on excessive pre-trial bail will alter negotiation dynamics such that a defendant is likely to plead guilty in order to obtain release. Thus, the imposition of high bail based on gang membership may be the only decision that affects the majority of defendants. Third, the allegation of gang affiliation is often inaccurate and unrelated to the offense; yet a defendant alleged to have a gang affiliation will often be treated as an extremely violent and dangerous individual. The invocation of gang membership suggests senseless violence, danger to others, and can lead to misguided preventive detention in the form of excessive bail.

The paper examines these issues and sets forth proposals for how to limit improper use of allegations of gang affiliation at the pre-trial detention stage.

"Avoiding the Extremes: A Proposal for Modifying Court Member Selection in the Military"

VICTOR HANSEN, New England Law | Boston
Email: vhansen

This article address the method used in the military court-martial system to select jurors (referred to as panel members). Under military law, the panel members who sit in judgment of a military service member are hand picked by the court-martial convening authority. The question often raised in how is a fair trial possible when the very person who determines if there should be a trial at all, and if so, what charges should be brought, is also the person who gets to hand-pick the people responsible for deciding guilt? Often the court-martial convening authority is the senior military officer on the base. If the convening authority determines that the charges should go to trial, can we really expect the military subordinates he selected to serve as panel members to exercise an independent evaluation of the case? Nonetheless, this is the very system that exists in the military today.

This article addresses this issue and offers a proposed change – not to the military’s panel selection system itself, but through an expansion of the accused’s rights to exercise peremptory challenges as a means of addressing the potential for unfairness and the threat of panel member-stacking. Part I of the article explores the current law associated with panel member selection, and the rationale behind this system. It examines the most common criticisms of this selection process, the solutions that have been proffered to date, and why those proposed solutions have failed to take hold. Part II looks at the law of challenges for cause and peremptory challenges. It focuses specifically on the historical development of peremptory challenges within the military and how the system of peremptory challenges currently operates. Part III proposes an expanded use of peremptory challenges for the military accused. Specifically, this part addresses how the selection process should be modified, the costs and benefits of such a modification and why this proposed change strikes an appropriate balance between the rights of the accused and the unique needs of a military justice system. In the final part, the article addresses the likely criticisms of this proposal.

"Federal Cybersecurity Programs"

Federalist Society New Federal Initiatives Project

ADAM ROSS PEARLMAN, affiliation not provided to SSRN
Email: arpearlman

This brief paper summarizes recently declassified provisions of the Comprehensive National Cybersecurity Initiative, and the efforts across the federal government to protect the integrity of our nation’s information and communications infrastructure, as of April 2010.

Is Publication of Classified Info a Criminal Act?

Steve Aftergood

Secrecy News (posted 9/27/10)

[Note: In this post at the blog Secrecy News, Steve Aftergood links to a recent CRS report  and provides some very interesting additional commentary.]

"Bagram, Boumediene, and Limited Government"

DePaul Law Review, Vol. 59, p. 851, 2010

ROBERT KNOWLES, Chicago-Kent College of Law
Email: rknowles
MARC D. FALKOFF, Northern Illinois University College of Law
Email: mfalkoff

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.

"The Relevance of International Law to the Domestic Decision on Prosecutions for Past Torture"

BARTRAM BROWN, Illinois Institute of Technology – Chicago-Kent College of Law
Email: bbrown

The US, as a champion of human rights abroad, has often been skeptical and even critical when other states have granted de facto amnesty allowing impunity for gross violations of human rights. Nonetheless, some now argue that the US should turn a blind eye to the evidence indicating that under the Bush Administration US government officials formulated and implemented a policy of torture. Naturally, arguments about US national security have been central to the debate. The CIA’s own reports insist that enhanced interrogation techniques have been effective in yielding valuable information vital to the national security of the United States, but the utility of torture, is subject to question.

Complicated though it may be, the debate over whether to prosecute officials for past acts of torture is a very important discussion to have. Unfortunately, it is being conducted on an unduly narrow basis. It is true that torture violates US law and would be the essential basis of any such prosecution. This might suggest that the decision is a matter solely within the domestic jurisdiction of the US. But in addition to US domestic laws the US has obligations under international law regarding the crime of torture. These too are relevant to this important debate. Enlarging the US internal debate to include relevant aspects of international law should not be objectionable, because international torture norms are essentially US core norms. Their application to the US helps to reinforce the values and processes of our own Constitution. The prohibition of torture under international law mirrors the prohibition of cruel or unusual punishment under the 8th Amendment of the US Constitution, while the Torture Convention’s mandatory enforcement regime complements the rule of law under the US Constitution by requiring the investigation and prosecution of those who commit torture. The shocking history of US torture policy under the Bush Administration demonstrates that at times even the US needs external pressure to respect its own values.

Successful prosecution now may be difficult due to reliance upon (subsequently withdrawn) opinions by the Justice Department’s Office of Legal Counsel (OLC) which suggested that many acts of torture, such as water-boarding were indeed legal. Despite this difficulty, US failure to pursue the option of prosecution would only compound any previous US violations of the Torture Convention.