forthcoming scholarship, and crossing the 1000-subscriber threshold

1. The National Security Law Listserv crosses the 1000 subscriber threshold

A handful of you will recall that this list began with just a dozen or so members back in 2003. It has grown steadily since then, and I’m pleased to report that last week we crossed the 1000-subscriber threshold. The most noticeable change over the past seven years? The volume of forthcoming scholarship. Speaking of which…

2. Forthcoming Scholarship

All Human Rights are Equal, But Some are More Equal than Others: The Extraordinary Rendition of a Terror Suspect in Italy, the NATO Sofa, and Human Rights

Harvard National Security Journal, Vol. 1, p. 171, 2010

Chris Jenks <http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1190695>

Government of the United States of America – Judge Advocate General’s Corps

Eric Talbot Jensen <http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=812464>

Fordham University School of Law

On November 4, 2009, an Italian court found a group of Italian military intelligence agents, operatives from the Central Intelligence Agency and a U.S. Air Force (USAF) officer guilty of the 2003 kidnapping of terror suspect Abu Omar. Thrown in a van on the streets of Milan, the abduction took Abu Omar from Italy to Egypt, where he was allegedly tortured and interrogated about his role in recruiting fighters for extremist Islamic causes, including the insurgency in Iraq.

This essay posits that lost amidst politically charged rhetoric about Bush administration impunity and the “war on terror” is that the Italian Court did not have jurisdiction over the USAF officer and violated the human rights of the other U.S. defendants. None of the U.S. defendants were at the proceedings. Although the Italian government refused to forward extradition requests from the Italian prosecutor to the U.S. government, Italian law allows for in absentia trials. Two Americans secured private counsel, the remaining U.S. defendants were solely represented by court-appointed Italian attorneys, none of whom ever spoke with their clients. Regardless of whether what happened to Abu Omar is considered an extraordinary rendition or state enabled kidnapping, the Italian proceedings should provide little comfort to those truly interested in the rule of law and human rights. Rather than supporting the rule of law, the Italian trial blatantly disregarded international law and treaty and the conduct of the in absentia proceedings simply followed one alleged human rights abuse with another.

This essay explains how the trial constituted a precedent setting breach by Italy of its international treaty obligations under the North Atlantic Treaty Organization Status of Forces Agreement. The essay then details the flawed in absentia trials, flaws which amount to a violation of the European Convention on Human Rights. Ultimately this essay concludes that while Italy may have spoken out against extraordinary rendition, the price for doing so was Italy’s own commitment to the rule of law and human rights.

"Permissible Self-Defense Targeting"

Denver Journal of International Law and Policy, Vol. 40, 2011
U of Houston Law Center No. 2010-A-35

JORDAN J. PAUST, University of Houston Law Center
Email: jpaust

This essay addresses several points made during a presentation at the Sutton Colloquium at the University of Denver College of Law on November 6, 2010 concerning the permissibility of use of responsive force in self-defense either in the context of war or outside of a relevant armed conflict when non-state actors such as members of al Qaeda engage in continual armed attacks on the United States, its embassies abroad, and its nationals abroad (especially continual attacks for several years on U.S. military personnel in Afghanistan). The essay refers to and quotes from my article in FSU’s Journal of Transnational Law & Policy, Vol. 19 (2010), also available at SSRN. The essay notes that lawful measures of self-defense can occur outside the context of war and without foreign state consent against non-state actors who are directly participating in the armed attacks (DPAA) and, in the context of war, against persons who are directly participating in hostilities (DPH). In either context, general principles of distinction among persons, reasonable necessity, and proportionality will condition lawful uses of force. Indiscriminate uses of force either in self-defense or during war are impermissible.

"Pulling Back the Covers: Saleh v. Titan Corporation and (Near-) Blanket Immunity for Military Contractors in War Zones"

IAN S. SPEIR, Georgetown University Law Center
Email: iss23

Taking a cue from dicta in the Supreme Court’s most recent pronouncement on foreign affairs preemption, I suggest in this paper that courts faced with thorny questions about the liability of military contractors in war zones should be more straightforward in assessing the balance of interests at stake. In applying its tort law, a state has strong, legitimate interests in punishing and deterring wrongdoing by resident corporations and providing compensation to resident victims (whether they be employees of the contractor, U.S. soldiers, or otherwise). By the same token, the federal government has a paramount and exclusive interest in the conduct of war, although in some circumstances it may see state tort law as useful – as an off-the-shelf mechanism for helping regulate contractor misconduct.

Finally, in weighing these interests, the culpability of a contractor or its employees should be considered. Applying tort principles to mere negligence by contractors may frustrate the federal interest in prosecuting a successful war (which generally necessitates significant risk-taking). However, the more reckless or deliberate the wrongdoing is, the greater role state tort law has to play; similarly, the more attenuated the federal interest because egregious misconduct may itself violate federal law or policy.

"No More Nisour Squares: Legal Control of Private Security Contractors in Iraq and After" Description: Free Download

Oregon Law Review, Vol. 88, No. 3, pp. 745-775, 2009
University of Baltimore School of Law Legal Studies Research Paper No. 2010-11

CHARLES TIEFER, University of Baltimore School of Law
Email: ctiefer

As a Commissioner on the federal Commission on Wartime Contracting in Iraq and Afghanistan established by Congress in 2008, I have been immersed in the issue of how to control the abuses and injuries of private security contractors. The key incident epitomizing this issue occurred in late 2007, when members of the Blackwater Worldwide (Blackwater) private security firm were escorting a convoy of State Department personnel through Baghdad. At Nisour Square, the Blackwater guards, some of whom claim they faced a threat, opened fire on civilians, killing seventeen Iraqis. Public attention continued as five Blackwater employees were indicted in December 2008, and the case continued in 2009 until the court dismissed the charges due to improper prosecutorial use of the guards’ statements. Negative Iraqi public perceptions of private security contractors continued from 2009 to 2010.

This Article analyzes and builds upon the somewhat successful steps taken by the Department of Defense and the Department of State in 2008–2009 to manage the problem. Analyzing those steps shows a key strand consisting of what may be called the “contract law” approach. In the much expanded form proposed in this Article, the “contract law” approach would use government contract requirements, contracting tools and sanctions, contract-related claims, and distinctive contract-related suits to both control and remedy private security abuses and injuries. This Article continues my prior studies as a professor of government contracting law with a specific interest in the Iraq war.

"Attorney Advice and the First Amendment"

Washington and Lee Law Review, Forthcoming
MSU Legal Studies Research Paper No. 08-19

RENEE NEWMAN KNAKE, Michigan State University College of Law
Email: reneeknake

An attorney’s advice for navigating and, when necessary, challenging the law is essential to American democracy. Yet the constitutional protection afforded to this category of speech is not clear; indeed, some question whether it should be protected at all. While legal ethics scholars have addressed attorney speech in other circumstances, none has focused exclusively on the First Amendment protection for attorney advice, particularly in light of the Supreme Court’s recent attention to the matter. Nor have constitutional law scholars given this issue the attention it deserves, though they acknowledge that it presents an important and unresolved question within First Amendment jurisprudence.

This article is the first to offer a detailed analysis of free speech protection for advice rendered by an attorney. Attention to this topic is especially timely given the Supreme Court’s recent focus on advice bans in statutes that address bankruptcy abuse and antiterrorism. These cases illustrate important considerations regarding two previously unresolved questions in First Amendment jurisprudence: first, whether legal advice is protected under the First Amendment and second, if so, to what extent may the government constitutionally restrict legal advice.

Part I of the article reviews the Court’s recent opinions on the two advice bans, neither of which directly addressed the First Amendment’s application to advice rendered by attorneys, though both offer helpful illustrations of the important concerns at stake when the government legislatively constricts access to legal advice. Part II of the article reframes attorney speech precedent from other contexts and assesses relevant constitutional theory to support the conclusion that attorney advice deserves strong protection. Part III reflects on the circumstances in which an attorney’s advice may be constitutionally constrained, and concludes with a summary of mechanisms preferable to advice bans for addressing concerns about problematic legal advice.

"Cooperation in Foreign Terrorism Prosecutions"

Georgetown Journal of International Law, Vol. 42

ERIN CREEGAN, affiliation not provided to SSRN
Email: ecreegan

There are two basic models for criminal justice systems: the adversarial model, which exists in the United States, and the inquisitorial model, which is far more common. This article explains the most important features of the inquisitorial model, and shows how these legal differences can sometimes create an impediment when Americans attempt to assist in foreign terrorism prosecutions. Looking at some common problems: a lack of pre-trial coordination between investigator and prosecutor, multiple retrials, long appeals processes, shorter sentences, and early release; this article explains differences and attempts to find collaborative solutions so that other countries can utilize U.S. experiences to successfully disrupt and incapacitate terrorists on their soil.

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