recent and upcoming events, forthcoming scholarship

November 10, 2010

1. Audio from UVA panel on targeted killing

On November 1st, the Federalist Society and the J.B. Moore Society of International Law at UVA sponsored a panel discussion on targeted killing, featuring Mike Lewis, Bob Turner, and John Echeverri-Gent, with Ken Anderson moderating. The audio is posted here:

2. Upcoming event: ABA Standing Committee Breakfast Series: W. Hays Parks (Senior Associate Deputy General Counsel, International Affairs, DoD), “National Security Law in Practice: The Department of Defense Law of War Manual”

The next edition of the Law of War Manual has been a long time coming, and needless to say it will be very interesting to hear anything by way of a preview of it.

The event will take place on November 18th, from 8 to 9 am, at the University Club (1135 16th Street NW, Washington, DC)

To register, check the date and mail a check (made out to ABA) to the address below

YOUR NAME______________________________PHONE_________________________

Nov 18 ___W. Hays Parks—–———————$25

Guest(s) $25/each

Total: _______

St. Cmte on Law and National Security

740 15th St NW, 9th Floor

Washington, DC 20005

Phone: 202-662-1035

3. Forthcoming Scholarship

"Islam and International Humanitarian Law: A Question of Compatibility?"

Israel Yearbook on Human Rights (preprint), Vol. 40, pp. 257-74, 2010

ROBERT PERRY BARNIDGE, University of Reading – School of Law
Email: r.barnidge

This article considers the question of compatibility between Islam and international humanitarian law. It begins by providing a broad overview of scholarly perspectives on an Islamic law of war, perspectives that find broad similarities between Islam and international humanitarian law. It then juxtaposes these findings with the philosophy of militant Islam on the conduct of hostilities. Finally, in tying together these thoughts, it stresses the challenges that liberal scholars face in attempting to reconcile these competing narratives in light of militant Islam’s philosophical resistance to moderation and uncompromising stance toward all things jahiliyya. These challenges are particularly acute given Islamist understandings of apostasy and militant Islam’s rejection of the discursive value of international law itself.

"George Washington and Executive Power"

JOHN YOO, University of California at Berkeley School of Law
Email: YOO

This paper examines current debates over the scope of presidential power through the lens of the Washington administration. We tend to treat Washington’s decisions with an air of inevitability, but the constitutional text left more questions about the executive unanswered than answered.

Washington filled these gaps with a number of foundational decisions – several on a par with those made during the writing and ratification of the Constitution itself. He was a republican before he was a Federalist, but ultimately Washington favored an energetic, independent executive, even at the cost of political harmony. He centralized decision-making in his office, so that there would be no confusion about his responsibility and accountability. He took the initiative in enforcing the law and followed his own interpretation of the Constitution. He managed diplomatic relations with other countries and set the nation’s foreign policy. At the end of his two terms, the Presidency looked much like the one described in The Federalist Papers.

None of this was foreordained. Washington could have chosen to mimic a parliamentary system or a balanced government with executive branch officials drawn from an aristocratic social class. He could have considered the Presidency as Congress’s clerk, committing himself solely to carrying out legislative directions. He might even have thought of himself as the servant of the states. But instead he read his constitutional powers broadly to lead the nation through its first growing pains; restore the country’s finances; keep the nation out of a dangerous European war; open the West to American expansion; and see the Constitution through the appearance of the first political parties.

"The Privilege of the Writ: The Supreme Court and Post-9/11 Detainee Habeas Corpus Entitlement"

JEREMY MODJESKA, Washington State University
Email: jeremy.modjeska

Habeas corpus is the right to challenge one’s detention in a court of law. With deep roots in common law, it is promulgated in U.S. law by the Constitution’s single sentence known as the Suspension Clause. Prior to 9/11, habeas corpus jurisprudence erected a framework of entitlements that vary according to a person’s location, citizenship, and alleged crimes. Plotted on a timeline of American history, many of the landmark cases that progressively articulated this framework are clustered around wartime, and the entitlement conventions that obtained reflected the terminology of traditional warfare. After 9/11, as the nature of warfare and enemies evolved, and the Executive claimed unprecedented authority to detain enemy combatants, Guantanamo Bay became the extraterritorial detention facility of choice. Beginning in 2004, the Supreme Court responded with a series of cases that created a minimal but definite foundation of habeas corpus entitlement and due process for Guantanamo detainees. This article looks primarily at these post-9/11 cases, the traditional notions of habeas corpus upon which they are predicated, and the possible shortcomings they evidence relative to Guantanamo and to other extraterritorial detention facilities.

"Nonattainder as a Liberty Interest"

Wisconsin Law Review, Forthcoming
Loyola-LA Legal Studies Paper No. 2010-11

AARON H. CAPLAN, Loyola Law School Los Angeles
Email: aaron.caplan

Existing constitutional doctrine does not deal well with government blacklists, such as the highly publicized federal No Fly List. Prior blacklisting cases have relied on a wide variety of legal theories, but are marked by internal disagreement and inconsistency in approach and result. The most commonly used theories ask whether the blacklists work a deprivation of liberty without due process, but there is no consensus as to when and whether government blacklists deprive listees of liberty, and if so, what kind of liberty. The problem arises in part from an unduly constricted conception of liberty as protecting the things that people want to do (call them privileges), without considering that it also implicates ways that people do not want to be treated (call them immunities).

This article proposes that the constitutional guarantee against bills of attainder – that is, the rule against singling out persons for punishment without trial – should be recognized as a due process liberty interest. In doing so, it finds deep resonances in lines of cases that have not previously been considered together. The proposal has two major benefits.

First, it provides a legal remedy that is currently unavailable to persons wrongly placed on government blacklists. Second, it offers coherence to a decentralized field. In particular, the proposal rectifies the much-criticized “stigma-plus” doctrine, which is best understood as a false start toward the protection of nonattainder as a liberty interest.

"Let the ‘Caroline’ Sink! Assessing the Legality of a Possible Israeli Attack on Iranian Nuclear Facilities and Why the Traditional Self-Defense Formula is Incompatible with the Nuclear Age"

The California International Law Journal, Vol. 18, No. 2, Spring 2010

YANIV ROZNAI, London School of Economics – Law Department
Email: y.roznai

This paper examines the legality of a possible Israeli pre-emptive attack on Iran’s nuclear facilities. Various arguments are examined, including whether such an attack violates the prohibition on the use of force; whether such an attack is a legal exercise of self-defense; whether such an attack is allowed due to existence of a customary law exception or existence of a state of war between the two states; and whether such an attack can be viewed as international law enforcement. The analysis conducted in this paper demonstrates that under current conditions an Israeli pre-emptive attack on Iran’s nuclear facilities cannot find convincing, legal support under any existing legal arguments.

This paper also examines whether traditional anticipatory self-defense criteria are suitable for the nuclear era. It is claimed that a strict interpretation of imminence is not suitable in the nuclear weapons age when states might face the threat of sudden and complete annihilation. Therefore, this paper suggests that the threat posed by a nuclear weapons and its means of delivery necessitates the relaxation of the traditional imminence requirement when assessing the legality of pre-emptive self-defense of a country facing a possible nuclear threat.

Lastly, the paper examines whether a possible attack can be deemed “illegal but justified”. Based on the idea that current self-defense rules seem incompatible with the nuclear age, it is claimed that Israel might view an attack on Iran’s nuclear facilities as justified – even if not legal – as a call for international law development along with technological progress.

"Communications Data Retention in an Evolving Internet"

International Journal of Law and Information Technology, Forthcoming

IAN BROWN, University of Oxford – Oxford Internet Institute
Email: ian.brown

The 2006 Data Retention Directive requires EU-based Internet Service Providers to store information on customers and their online communications. The Directive is being reviewed by the European Commission, and has been criticised in a number of recent national constitutional court judgments due to its impact on privacy. It is now being considered by the European Court of Justice. This article describes the likely impact on data retention of further developments in Internet usage, technology and law. It outlines the increasing use of private networks and member community sites that are not subject to the Directive, and the changes in surveillance technology and practice that some member states have proposed in response. It concludes by analysing the key factors to be taken into account in the EC and ECJ reviews, and suggests more proportionate and effective mechanisms for preserving appropriate law enforcement access to communications data.