nationalsecuritylaw updated agenda of events for AALS next week

December 31, 2010

This is an updated recommended agenda for those of you attending the AALS annual meeting in San Fran next week. It includes one additional event, first thing Friday morning, as well as additional info regarding particular sessions.

* NSL-events to put on your calendar if you are going to the AALS annual meeting in San Fran in January

Are you a law prof going to the AALS annual meeting in San Francisco in January? If so, put all of this on your calendar!

Friday January 7th

8:30-10:15

Hot Topics Panel – The Cutting Edge of Extraterritoriality (Yosemite C Room on the ballroom level of the Hilton). I know that at least one panelist (Chimene Keitner of Hastings) intends to discuss the extraterritorial application of the Constitution in relation to Boumediene, al-Maqaleh, al-Awlaki, and Ali v. Rumsfeld. I believe that the other panelists include Hannah Buxbaum, Bill Dodge, and Anthony Colangelo, and that they will be address questions of extraterritoriality in statutory contexts.

2:15-3:30 – location still TBD – be sure to let me know ASAP if you plan to join us.

Impromptu Roundtable

There’s nothing particularly relevant for national security law on Friday the 7th (so far as I know), so Steve Vladeck and I thought it would be fun to have an impromptu roundtable to talk about issues such as targeted killing, wikileaks, and, as always, GTMO. No location selected yet, but if you are interested let me know so I can tell you where we end up going.

Saturday January 8th

8:30-10:15

Section on Fed Courts, “The Roberts Court and Official Immunity Doctrine” (apropos of the al Kidd litigation)

Cyril Magnin III, Fourth Floor Level, Parc 55 Wyndham San Francisco Union Square

The Roberts Court and Official Immunity Doctrines

(Papers to be published in Fordham Law Review)

Moderator: Thomas H. Lee, Fordham University School of Law

Speakers: Scott L. Nelson, Public Citizen, Washington, DC

Kevin C. Newsom, Esquire, Bradley Arant Boult Cummings LLP, Birmingham, AL

James E. Pfander, Northwestern University School of Law

When, and how, may officers acting (or purporting to act) on behalf of a government (federal, state, local, or foreign) be sued in federal court? Just as the largely symbolic sovereign immunity of the states was a recurring issue in the decisions of the Rehnquist Court, enabling the more practical immunities of the officers who embody sovereign authority has become a theme of the early Roberts Court. Recently, the Court unanimously reversed prior precedent requiring federal courts to adjudicate whether a constitutional right was violated in deciding a official’s claim to immunity because the right was not "clearly established." The decision came on the heels of pressure from lower court judges who objected to the necessity of deciding the constitutional right question first. And, in 2010, the Court decided a case involving the immunity of foreign officers sued for violations of international law under the Alien Tort State. In the upcoming term, the Court will decide a case involving the absolute immunity of prosecutors. This panel will address the history, doctrine, and policy justifications of officer immunity in the United States.

or

Section on Immigration Law, “Due Process in the Era of Mass Immigration Detention”

Cyril Magnin 1, Fourth Floor Level, Parc 55 Wyndham San Francisco Union Square

Due Process in the Era of Mass Immigration Detention

Moderator: Nancy Morawetz, New York University School of Law

Speakers: Raha Jorjani, University of California, Davis School of Law

Anil Kalhan, Drexel University Earle Mack School of Law

Peter Markowitz, Benjamin N. Cardozo School of Law Yeshiva University

David A. Martin, Principal Deputy General Counsel, U.S. Department of Homeland Security, Washington, DC

During the past two decades there has been a surge in immigration detention. Today, the detention system is massive and growing. Although nominally a system of civil detention, it operates under norms developed for incarceration. Detainees are held in a sprawling complex of local jails, federal detention centers and private facilities and are routinely transferred between facilities. These detainees are processed through a variety of mechanisms. Some will appear before an immigration judge and may later pursue administrative appeals and judicial review. Others will face administrative removal orders or reinstatement of old removal orders by deportation officers with limited review. Still others will be encouraged to stipulate to removal while they are being held in custody.

This panel will explore due process questions in this system of mass detention. The panelists will look at whether due process can be achieved without a right to counsel and whether there are reforms short of such a right that can improve due process.

10:30-12:15

Committee on Research, “Book Publishing Workshop”

Granted, the connection to NSL here is thin, but I include this both because it is inherently interesting and because several of the editors on the panel have at least some interest in this topic and hence you might want to meet them to discuss any NSL-related book ideas you may have.

Imperial A, Ballroom Level, Hilton San Francisco Union Square

Book Publishing Workshop for the Aspiring Legal Scholar

Co-Moderators: Robin Paul Malloy, Syracuse University College of Law

Lynn Mather, University at Buffalo Law School State University of New York

Speakers: John Berger, Senior Editor, Cambridge University Press, New York, NY

Chris Collins, Acquisitions Editor, Oxford University Press, New York, NY

Debbie Gershenowitz, Senior Editor, NYU Press, New York, NY

Tara Gorvine, Acquisitions Editor, Edward Elgar Publishing Inc., Northampton, MA

Alison Kirk, Ashgate Publishing Limited, East Surrey, United Kingdom

Elizabeth Knoll, Senior Editor, Harvard University Press, Cambridge, MA

Making the transition from writing law review articles or completing a dissertation to writing a book is a daunting task, especially if you do not have a strong mentor to guide you through the process. The Committee seeks to assist interested scholars in learning the ins and outs of book publishing so that they can enhance their publishing success. There are, of course, many types of books (academic books, trade books, casebooks, student study aids, authored books, and edited books, for example). Due to time constraints, this workshop will focus on scholarly and academic books rather than casebooks or practice materials. It is also important to note that there are many excellent publishers to consider when pursuing a book project. Since we could not, of course, include everyone on our panel, we direct all of our attendees to visit the AALS Exhibit Hall to explore the full range of the publishing options available.

Led by authors with experience at preparing and soliciting manuscripts in a variety of categories, this workshop seeks to bridge the gap between being a productive scholar and a first time book author. Editors from several book publishers will explain what they look for in reviewing a book proposal and how their press approaches the contract and publishing process.

Some of the questions to be answered by the workshop include:

• How does one determine the type of book that best fits an individual’s research program and professional goals? (For example, trade books, casebooks, academic books, authored book or edited book).

• How does one chose an appropriate publisher for a given book idea and proposal?

• What should be in a book proposal, and what else should be sent with a proposal?

• Does one need to submit a full manuscript with a book proposal?

• How does writing a book differ from a law review article or a dissertation?

How does the peer review process work?

• What questions should be asked of an editor and what might one expect in a publishing contract?

• What can one expect from a publisher with respect to publication of materials on SSRN, or in other sources prior to book publication and post publication?

• What can one expect in discussions of royalties or the choice between a hardback and soft cover book?

• What are the key stages in the book publication process and about how long might they take?

The session will be conducted as a conversation with the moderators posing questions to the various participants. There will be time set aside for audience questions. Attendees are encouraged to visit with workshop speakers and with the editorial representatives of other publishers in the AALS Exhibit Hall (open Wednesday through Friday).

12:15-1:30

Section on National Security Law Luncheon (Note- need a ticket for this one. Well worth it though; aside from being an amazing scholar, Trevor served in the White House Counsel’s Office over the past two years)

Keynote Speaker: Trevor W. Morrison, Columbia Law School, “Thoughts on Detention, Law, and the Courts”

Date & Time: Saturday, January 8, 12:15 – 1:15 p.m.

Location: Parc 55, Stockton Room (4th Floor)

(Tickets were sold in advance of the Annual Meeting. Tickets may be purchased at On-Site Registration until 7:00 pm on Friday, January 7 if space is available. Tickets will not be for sale at the luncheon.)

1:30-3:15

Section on National Security Law, “The Relationship Between Military Justice, Civil/Military Relations, and National Security Law”

Topic: “The Relationship Between Military Justice, Civil/Military Relations, and National Security Law “

Date & Time: Saturday, January 8, 1:30 – 3:15 p.m.

Location: Hotel Nikko, Peninsula Room (25th Floor)

Moderator:

Stephen I. Vladeck, American University Washington College of Law

Speakers:

Mario L. Barnes, University of California, Irvine Donald Bren School of Law

Eugene R. Fidell, Yale Law School

Elizabeth L. Hillman, University of California Hastings College of the Law

Diane H. Mazur, University of Florida Fredric G. Levin College of Law

Description: Although military law and justice issues are at the core of many contemporary national security debates, they tend to get short shrift in academic discourse. This panel of experts—each of whom has served as either a uniformed or civilian military lawyer—will attempt to rectify that shortcoming, covering topics including the current state of civil/military relations; the ongoing controversy over stop-loss; the continuing implications of Don’t Ask, Don’t Tell; current issues in the military criminal justice system; and the more general relationship between military law and national security law today. Separate from these individual topics, the panel will focus more generally on the state of military law, and on areas for both substantive and pedagogical reform going forward.

Business Meeting at Program Conclusion.


nationalsecuritylaw NSL-related events to put on your calendar if you are going to AALS in January

December 23, 2010

* NSL-events to put on your calendar if you are going to the AALS annual meeting in San Fran in January

Are you a law prof going to the AALS annual meeting in San Francisco in January? If so, put all of this on your calendar!

Friday January 7th

2:15-3:30

Impromptu Roundtable

There’s nothing particularly relevant for national security law on Friday the 7th (so far as I know), so Steve Vladeck and I thought it would be fun to have an impromptu roundtable to talk about issues such as targeted killing, wikileaks, and, as always, GTMO. No location selected yet, but if you are interested let me know so I can tell you where we end up going.

Saturday January 8th

8:30-10:15

Section on Fed Courts, “The Roberts Court and Official Immunity Doctrine” (apropos of the al Kidd litigation)

or

Section on Immigration Law, “Due Process in the Era of Mass Immigration Detention”

10:30-12:15

Committee on Research, “Book Publishing Workshop”

Granted, the connection to NSL here is thin, but I include this both because it is inherently interesting and because several of the editors on the panel have at least some interest in this topic and hence you might want to meet them to discuss any NSL-related book ideas you may have.

12:15-1:30

Section on National Security Law Luncheon (Note- need a ticket for this one. Well worth it though; aside from being an amazing scholar, Trevor served in the White House Counsel’s Office over the past two years)

Keynote Speaker: Trevor W. Morrison, Columbia Law School, “Thoughts on Detention, Law, and the Courts”

Date & Time: Saturday, January 8, 12:15 – 1:15 p.m.

Location: Parc 55, Stockton Room (4th Floor)

1:30-3:15

Section on National Security Law, “The Relationship Between Military Justice, Civil/Military Relations, and National Security Law”

Topic: “The Relationship Between Military Justice, Civil/Military Relations, and National Security Law “

Date & Time: Saturday, January 8, 1:30 – 3:15 p.m.

Location: Hotel Nikko, Peninsula Room (25th Floor)

Moderator:

Stephen I. Vladeck, American University Washington College of Law

Speakers:

Mario L. Barnes, University of California, Irvine Donald Bren School of Law

Eugene R. Fidell, Yale Law School

Elizabeth L. Hillman, University of California Hastings College of the Law

Diane H. Mazur, University of Florida Fredric G. Levin College of Law

Description: Although military law and justice issues are at the core of many contemporary national security debates, they tend to get short shrift in academic discourse. This panel of experts—each of whom has served as either a uniformed or civilian military lawyer—will attempt to rectify that shortcoming, covering topics including the current state of civil/military relations; the ongoing controversy over stop-loss; the continuing implications of Don’t Ask, Don’t Tell; current issues in the military criminal justice system; and the more general relationship between military law and national security law today. Separate from these individual topics, the panel will focus more generally on the state of military law, and on areas for both substantive and pedagogical reform going forward.

Business Meeting at Program Conclusion.


nationalsecuritylaw United States v. Abu-Jihaad (2d Cir. Dec. 20, 2010) (affirming conviction)

December 23, 2010

* United States v. Abu-Jihaad (2d Cir. Dec. 20, 2010) (affirming conviction)

The 2nd Circuit has affirmed the conviction of Hassan Abu-Jihaad (formerly known as Paul Hall) in connection with the disclosure of national defense information (involving the movements of a Navy battlegroup) to a UK resident involved in an online extremist publication. On appeal, he argued that the trial court erred by not suppressing FISA-derived evidence (either because FISA is unconstitutional or because the government failed to comply with it), that various other evidentiary rulings were erroneous to the point of denying him a fair trial, that the evidence in any event was inadequate to support the conviction, and that various CIPA orders were an abuse of discretion. In an opinion by Judge Raggi (joined by Judges Hall and Chin), the panel rejected all of these arguments.


nationalsecuritylaw Job Opening: Staff Director Job Description for Constitution Project’s Task Force on Detainee Treatment Attached and Pasted

December 22, 2010

* Job Opening: Staff Director, Constitution Project Task Force on Detainee Treatment

THE CONSTITUTION PROJECT SEEKS STAFF DIRECTOR FOR TASK FORCE ON DETAINEE TREATMENT

The Constitution Project (TCP) seeks a staff director to work with its newly-created, bipartisan Task Force on Detainee Treatment.

The goal of the Task Force is to bring to the American people a comprehensive understanding of what is known and what may still be unknown about the past and current treatment of detainees by the U.S. government, as part of the counterterrorism policies of the Obama, Bush and Clinton administrations. The Task Force will help policymakers and the public confront alleged past abuses—including torture and cruel treatment—by following the facts. The Task Force will review available information, determine where the holes are and then pass the baton to the administration, Congress and ultimately—to the American people—who will determine what steps should be taken next.

The members of the Task Force represent a full spectrum of political views and a wide range of professional backgrounds—legal, public policy, intelligence, military, law enforcement, religious, academic, public service, and medical.

The staff director, working under the direction of TCP’s president and with the support of its staff, will guide the Task Force in its investigation and in the development of its report and recommendations. To assist in this work, the staff director will help hire and manage a team that will include investigators, legal counsel, and others as appropriate. This is a full-time, temporary position with an expected duration of 12-18 months.

The ideal candidate will have:

• Extensive experience with oversight and investigations, policymaking, and policy analysis

• Knowledge of international, human rights, constitutional, and national security laws and policies

• Outstanding research and writing skills

• A proven ability to manage a team

• The ability to manage competing demands and thrive in a challenging, fast-paced environment.

• A commitment to consensus-building and to working in a bipartisan environment

Timeframe: The Task Force will begin the research and investigation phases of its work as soon as the staff director and support team are hired. A final report will be released in 12-18 months.

About The Constitution Project: Established in 1997 and based in Washington, DC, The Constitution Project (TCP) is known for its ability to bring together unlikely allies—experts and practitioners from across the political spectrum—in order to promote and safeguard America’s founding charter. TCP is working to reform the nation’s broken criminal justice system and to strengthen the rule of law by undertaking scholarship, advocacy, policy reform, and public education initiatives. TCP was born out of the belief that we must cast aside the labels that divide us, in order to keep our Constitution and our democracy strong.

The Constitution Project is an Equal Opportunity Employer. It does not discriminate on the basis of race, gender, ethnicity, sexual or gender orientation, age, religion, or physical ability. More information about the Constitution Project is available at www.constitutionproject.org. A competitive salary and benefits are available.

Please submit a resume, references, and a writing sample to the attention of Scott Messinger via email at smessinger (including “Task Force Staff Director Application” in the subject line) or via mail at 1200 18th Street, NW, 10th Floor, Washington, DC 20036.

No phone calls please.

Staff Director Position Final Dec 2010.docx


nationalsecuritylaw proposed legislation: CIPA Reform and Improvement Act (Senator Cardin)

December 21, 2010

* Proposed Legislation: The CIPA Reform and Improvement Act (“CRIA”, S. 4050)

Senator Cardin has introduced a bill to update and reform CIPA. The full text is attached, as is a page from the Congressional Record containing the introductory comments explaining the bill. The key passage summarizing the bill’s aims:

“…I am introducing the CIPA Reform and Improvement Act, CRIA, of 2010. CRIA contains reforms and improvements to ensure that the statute maintains the proper balance between the protection of classified sources, methods and information, and a defendant’s constitutional rights. Among other things, this legislation, which includes the applicable changes that the Congress made when it enacted the Military Commissions Act of 2009, will codify, clarify, and unify Federal case law interpreting CIPA; ensure that all classified information, not just documents, will be governed by CIPA; ensure that prosecutors and defense attorneys will be able to fully inform trial courts about classified information issues; and will clarify that the civil state secrets privilege does not apply in criminal cases. CRIA will also ensure high-level DOJ approval before the government invokes its classified information privilege in criminal cases and will ensure that the Federal courts will order the disclosure and use of classified information when the disclosure and use meets the applicable legal standards. This legislation will also ensure timely appellate review of lower court CIPA decisions before the commencement of a trial, explicitly permit trial courts to adopt alternative procedures for the admission of classified information in accordance with a defendant’s fair trial and due process rights, and make technical fixes to ensure consistent use of terms throughout the statute.”

EAS10556 – CRIA FINAL.pdf

CREC-2010-12-20-pt1-PgS10816.pdf


nationalsecuritylaw United States v. Hamayel (S.D. Fla. Dec. 16, 2010)

December 17, 2010

* United States v. Hamayel (S.D. Fla. Dec. 16, 2010) (guilty plea in weapons export conspiracy case)

A guilty plea yesterday from a Palestinian man involved in a plot to purchase a large amount of automatic weapons, grenades, and material for IEDs for export. Details from the press release:

MIAMI – Wifredo A. Ferrer, U.S. Attorney for the Southern District of Florida, and John V. Gillies, Special Agent in Charge, FBI Miami Field Office, announced that defendant Abdalaziz Aziz Hamayel, 23, of West Bank Palestinian Authority, pleaded guilty today to one count of conspiracy to possess stolen firearms (M-16s, AK-47s) and to transport explosive materials, including hand grenades and improvised explosive devices (IEDs).

Sentencing is scheduled for Feb. 22, 2011. Hamayel faces a maximum statutory sentence of five years in prison on the conspiracy charge.

According to statements made before U.S. District Court Judge Donald M. Middlebrooks, in April 2009, an FBI confidential source told agents about two individuals, Hamayel and co-conspirator Yanny Aguila Urbay, 24, of Hialeah. According to the confidential source, these individuals wanted to purchase large quantities of automatic weapons. The confidential source then introduced an undercover officer (UC) to Hamayel and Urbay as a purported supplier of fully-automatic, stolen weapons

At their first meeting with the UC on May 11, 2009, Hamayel and Urbay requested 200 to 300 fully-automatic assault rifles. They also asked if the UC could supply grenades and homemade bombs with remote detonation capabilities. When asked what he was going to do with the weapons, Hamayel stated that the weapons would all be going out of the country.

On June 11, 2009, the UC met with Hamayel and showed him examples of the weapons he requested for purchase, including an AK-47, two M-16s, two grenades and two detonators for IEDs. On June 12, 2009, at Hamayel’s request, the UC provided a photo of these items to Hamayel so he could show the weapons to the prospective buyers.

On June 19, 2009, Hamayel left the country. When Hamayel returned to the United States on Aug. 30, 2010, he was arrested by federal authorities. Co-conspirator Urbay was subsequently arrested on Sept. 6, 2010. Urbay is scheduled to appear for trial on these charges before Judge Middlebrooks on Jan. 24, 2011.


nationalsecuritylaw G’town Law Establishes LL.M. Degree Program in National Security Law

December 17, 2010

* Georgetown Announces LLM Program in National Security Law

From Georgetown’s press release:

WASHINGTON, D.C. – Georgetown University Law Center is pleased to announce the establishment of an LL.M. degree program in national security law.

"We are delighted to add the LL.M. in national security law to our graduate degree offerings," said Georgetown Law Dean William M. Treanor. "Several members of our faculty are nationally and internationally recognized experts in the field, and I can think of no better place to study this area of the law than Washington, D.C."

Candidates in the one-year advanced degree program will be expected to complete a graduate seminar and coursework in national security law, as well as a writing requirement. They will also have the opportunity to take other courses at the Law Center and on the Georgetown main campus.

Georgetown Law has one of the strongest national security law programs in the country. More than a dozen members of the full-time faculty, as well as over 60 adjuncts from the national security bar, the bench, and the NGO community, teach a broad range of courses in the field. Over the last ten years, more than 100 of these courses have been offered at the Law Center.

Georgetown Law is also home to the Georgetown Center on National Security and the Law. The Center operates a daily security law blog; provides pro bono legal advice on security litigation; works with members of Congress on public policy initiatives; provides non-partisan advice to members and their staffs on security issues; and sponsors numerous discussions, lectures, and programs. Current Center projects focus on the state secrets privilege, emerging technologies, biological weapons and quarantine law, security clearances, habeas corpus, cybersecurity, military ethics, and civilian and military relations.

The Center also partners with Georgetown Law’s Human Rights Institute, which offers programs on detention and interrogation, the use of unmanned aerial vehicles, and the boundary between national security and criminal law, as well as the Law Center’s Federal Legislation and Administrative Clinic, which carries out projects on cyberlaw and reorganization of the intelligence community.

"The study of national security law is vitally important right now," said Professor David Luban, acting director of the Georgetown Center on National Security and the Law. "We are excited to offer our graduate students a highly rigorous program that will deepen their understanding of this critical area, and to help provide them with the foundation for future careers in the field."

In addition to national security law, Georgetown offers LL.M. degree programs in international legal studies, global health, securities and financial regulation, taxation, and international business and economic law.

Complete details for the LL.M. in National Security Law can be found here: http://www.law.georgetown.edu/graduate/NationalSecurityLawLLMandJDLLM.htm


nationalsecuritylaw United States v. Kadir (E.D.N.Y. Dec. 15, 2010)

December 16, 2010

* United States v. Kadir (E.D.N.Y. Dec. 15, 2010)

A life sentence yesterday for Abdul Kadir in connection with the plot targeting JFK airport. Recall that Kadir was convicted by a jury last summer, after a lengthy trial, of conspiring to carry out an attack on the airport involving fuel tanks and pipelines. Details from the DOJ press release follow:

BROOKLYN, NY – Earlier today, in the Eastern District of New York, U.S. District Judge Dora L. Irizarry sentenced Abdul Kadir to life in prison for conspiring to attack John F. Kennedy International Airport in Queens, N.Y., by exploding fuel tanks and the fuel pipeline under the airport. Kadir and his co-conspirators believed their attack would cause extensive damage to the airport and to the New York economy, as well as the loss of numerous lives.

A federal jury convicted Kadir and co-conspirator Russell Defreitas in July 2010, after a nine-week trial. A third defendant, Abdel Nur, pleaded guilty before trial to supporting the plot and faces a sentence of up to 15 years. A fourth member of the plot, Kareem Ibrahim, faces trial on the same charges as Defreitas and Kadir.

The evidence at trial established that Defreitas, a naturalized U.S. citizen from Guyana, originated the idea to attack JFK Airport and its fuel tanks and pipelines by drawing on his prior experience working at the airport as a cargo handler. During multiple trips to Guyana and Trinidad in 2006 and 2007, Defreitas recruited Kadir and others to join the plot. Between trips, Defreitas engaged in video surveillance of JFK Airport and transported the footage back to Guyana to show Kadir and their co-conspirators. Kadir, a trained engineer with connections to militant groups in Iran and Venezuela, provided the conspirators with links to individuals with terrorist experience, advice on explosive materials, and a bank account through which to finance the terrorist attack. The members of the plot attempted to enlist support from prominent international terrorist groups and leaders, as well as the government of Iran, including Abu Bakr, leader of the Trinidadian militant group Jamaat Al Muslimeen, and Adnan El Shukrijumah, an al-Qaeda leader.

At trial, Kadir, a former member of the Guyanese parliament, admitted that he regularly passed information to Iranian authorities about sensitive topics, including the Guyanese military, and believed himself bound to follow fatwas from Iranian religious leaders. On June 2, 2007, Kadir was arrested in Trinidad aboard a plane headed to Venezuela, en route to Iran. He was subsequently extradited to the United States.

The specific charges Kadir was convicted of were: conspiracy to attack a public transportation system, conspiracy to destroy a building by fire or explosive, conspiracy to attack aircraft and aircraft materials, conspiracy to destroy international airport facilities and conspiracy to attack a mass transportation facility.


nationalsecuritylaw Forthcoming Scholarship

December 15, 2010

* Forthcoming Scholarship

Still a Bad Idea: Military Commissions Under the Obama Administration

David W. Glazier
Loyola Law School Los Angeles

Although Senator Obama was critical of the Bush administration’s military commissions, President Obama surprised many observers by reviving the trials. Congress then enacted the Military Commissions Act of 2009, improving their procedural fairness including a categorical ban on statements obtained through torture and cruel, inhuman, or degrading treatment. The new statute largely quieted previous criticism and support has grown for commission use in preference to federal courts. This article argues that the commissions remain badly, if not fatally, flawed in both procedure and substantive law. The bar against evidence obtained through coercion is ineffective, for example. Prosecutors seem determined to use such evidence, purporting to rely on commission judges as gatekeepers. But the adversarial commission process then shifts the effective burden of keeping the evidence out to the defense, which is substantially impeded by government control of information about interrogations, abuse of classification rules, and lack of good faith discovery. Other procedural issues include the multiple roles allowed the civilian convening authority, denial of defense representation by counsel of choice, and the inequality of resources and access to evidence between prosecution and defense. Issues with the substantive law being applied are even more significant, with serious defects in almost all offenses prosecuted to date. The most common charges, conspiracy and providing material support to terrorism are not recognized violations of the law of armed conflict which would make them prohibited ex post facto enactments. Other offenses have serious problems as applied, being used to prosecute suspected terrorists on the basis of their status as unprivileged belligerents rather than for conduct violating the law of war. These factors may result in commission verdicts being overturned during judicial review; they will surely undermine the trials’ credibility and enhance support for America’s adversaries.

Journal of National Security Law & Policy, Volume 4 Issue #2 (2010)

The new issue of JNSL&P is now out, and as always well-worth a read. You probably already have a subscription ($30) already, but just in case here are the contents of the latest issue:

One Lantern in the Darkest Night: The CIA’s Inspector General
Ryan M. Check & Afsheen John Radsan

The Laws of War as a Constitutional Limit on Military Jurisdiction
Stephen I. Vladeck

The Choice of Law Against Terrorism
Mary Ellen O’ Connell

Balancing Security and Liberty in Germany
Russell A. Miller

Security First? Patterns and Lessons from China’s Use of Law To Address National Security Threats
Jacques deLisle

The International Standardization of National Security Law
Kim Lane Scheppele

The Sacrificial Yoo: Accounting for Torture in the OPR Report
David D. Cole

A Knowledgeable Insider Warns of the Challenges in Shaping Counterterrorism Policies
(reviewing Skating on Stilts: Why We Aren’t Stopping Tomorrow’s Terrorism by Stewart A. Baker)

John H. Shenefield

______________

The Principle of Proportionality Under International Humanitarian Law and Operation Cast Lead

Robert Perry Barnidge Jr.
University of Reading – School of Law

NEW BATTLEFIELDS/OLD LAWS, William C. Banks, ed., Columbia University Press, September 2011

Abstract:
This chapter critically examines the principle of proportionality under international humanitarian law and contextualizes its vulnerabilities by looking at Israel’s actions during Operation Cast Lead in the Gaza Strip between December 27, 2008, and January 18, 2009. It begins by providing a black letter law overview of the principle. Although widely accepted, the proportionality principle suffers from significant shortcomings that impact its usefulness as a predictable tool for distinguishing between the lawful and the unlawful, particularly in the context of asymmetrical warfare. These shortcomings exist at both a theoretical level, in the abstract, and at a practical level. To focus these discussions, the second half of this chapter looks at the largely negative international reaction to Israel’s actions during Operation Cast Lead. This reaction, which was, and has been, typically couched with a feigned certainty that belies and leaves unanswered the theoretical shortcomings of the principle of proportionality, suggests that, more often than not, proportionality acts as the ultimate exemplar of law used instrumentally, as a tool to further a particular politics and paradigm of power.

Excerpted from the forthcoming: New Battlefields/Old Laws edited by William C. Banks scheduled for publication in September 2011. Copyright (c) 2010 Columbia University Press. Used by arrangement with the Publisher. All rights reserved.

"Use and Misuse of Evidence Obtained During Extraordinary Renditions: How Do We Avoid Diluting Fundamental Protections?"

NSU Shepard Broad Law Center Research Paper

VICTOR HANSEN, New England Law | Boston
Email: vhansen

This article considers and questions the ways in which grand schemes of rights infringement such as extraordinary rendition can translate into specific but also corrosive questions of accommodation in the law of evidence. This article enables us to see the extents to which questions considered to be either ‘grand’ or ‘minor’ in the context of counter-terrorism and human rights protections are, in fact, inter-connected. The article focuses on the use of information obtained from detainees who were subjected to extraordinary rendition. The article examines how the information obtained during these periods of extraordinary rendition might be used in any subsequent criminal prosecutions of the detainees. The article explores the rules in both U.S. Federal Court and the Military Commissions which govern the admissibility of evidence obtained during extraordinary renditions and questions whether evidence obtained under this practice should be admissible in any subsequent prosecutions of the detainees. The paper examines the likely corrosive impact that the use of this evidence could have on fundamental due process protections and concludes that while the admissibility of this evidence is problematic in any forum, trying these suspects in federal court is the best option available.

"Scholars and Security"

Perspectives on Politics, Vol. 8, No. 4, p. 1095, 2010

PAUL BRACKEN, Yale School of Management
Email: paul.bracken

A reset of relations between academia and the US security community is needed to manage an increasingly dangerous international order. Concerns about Pentagon co-optation of academia pale in comparison to continued reliance on a loosely associated collection of DoD, the intelligence community, Congressional staffers, contractors, and Washington based think tanks for strategic thinking. Few have noticed how the intellectual base of US defense and security thinking has concentrated geographically to inside the Washington beltway. In contrast, the analytical structures of thought leadership in World War II and the Cold War had a much broader intellectual base, drawing from wider segments of American life.

The paper explores several case studies of the changing market for thought leadership in US security thinking, arguing that a decisive factor reshaping it in the past has been the degree of peril and risk. As the evident danger grew, thinking became more serious and focused. We are, once again, on the cusp of such a change in the locus of US thinking.


nationalsecuritylaw forthcoming scholarship: Chesney on the Individual Scope of Detention Authority in the Habeas Caselaw

December 14, 2010

* Forthcoming Scholarship

With apologies for the shameless self-promotion. Note that this is a draft, and comments/criticisms are welcome.

Who May Be Held? Military Detention Through the Habeas Lens

Robert Chesney (University of Texas School of Law)

52 Boston College Law Review (forthcoming 2011)

We lack consensus regarding who lawfully may be held in military custody in the contexts that matter most to U.S. national security today—i.e., counterterrorism and counterinsurgency. More to the point, federal judges lack consensus on this question. They have grappled with it periodically since 2002, and for the past three years have dealt with it continually in connection with the flood of habeas corpus litigation arising out of Guantanamo in the aftermath of the Supreme Court‘s 2008 decision in Boumediene v. Bush. Unfortunately, the resulting detention jurisprudence is shot through with disagreement on points large and small, leaving the precise boundaries of the government‘s detention authority unclear.

Part I opens with an abstract typology of criteria and constraints that might be used to define a detention standard at the individual level. Part II then provides further context with a thumbnail sketch of two overarching disagreements that greatly complicate the detention debate: we do not agree as to which bodies of law govern this question, nor do we agree as to what each particular body of law actually has to say, if anything, regarding individualized detention criteria even if that body is applicable. Part III follows with a survey of about two dozen habeas decisions between 2002 and 2010 in which courts grapple with the individualized-scope issue, using the typology from Part I as a device to facilitate comparison of the decisions.

With respect to affirmative predicates for detention, the survey concludes that something close to consensus has emerged regarding the use of group membership as a sufficient condition for detention, but that there may yet be considerable disagreement as to what counts as membership in this context. The survey also notes that the jury remains out with respect to whether non-member support for certain groups may also function as a sufficient condition for detention. With respect to variables that can function as constraints on detention authority, the survey shows that the courts have developed consensus against employing certain constraints (such as forbidding the use of detention as to citizens, or in circumstances where the government might have a criminal prosecution alternative). On the other hand, the question of geographic constraints on the scope of detention authority remains unsettled.

Part IV considers the ramifications of this descriptive account. I open by arguing that the lingering uncertainty matters a great deal both in terms of the remaining Guantanamo cases and in terms of other military activities that take place in the shadow of the habeas caselaw. I then consider the arguments for and against legislation to reduce the uncertainty, finding that the case for legislation is difficult but ultimately persuasive in the abstract (note that this paper is not a pitch for adopting some particular legislative proposal). Finally, I explain that the detention litigation illustrates three larger phenomena: (i) the dynamic relationship between law and strategic context; (ii) the increasing significance of domestic courts for purposes of developing international humanitarian law, and (iii) the increasing extent to which domestic law challenges both international humanitarian law and international human rights law for primacy when it comes to the legal regulation of national security-related activities.