* Forthcoming Scholarship
Adam Ross Pearlman
Engage: The Journal of the Federalist Society’s Practice Groups, Vol. 11, No. 3, pg. 107
Late last year, Benjamin Wittes compiled a series of ten essays that offer a range of suggestions for congressional action with respect to U.S. counterterrorism policies. He means for the text not to be taken as a fluid whole, but rather as a series of independent observations and examinations of the broad, complex swath of legal and policy issues encompassing the once-called War on Terror.
The authors of the various pieces range greatly in both their backgrounds and political persuasions. Contributors include noted scholars as well as practitioners, including former officials from both Democratic and Republican administrations, but, Wittes tells us, the common thread among them is "the belief in the value of legislative action to help shape the contours of the continuing U.S. confrontation with terrorism." In this period of institutionalizing counterterrorism legal authorities in such a way as to recognize evolving strategies and constantly changing tactics, this text overwhelmingly favors statutory lawmaking to establish what can be done, rather than relying on jurisprudential fiat to decree what cannot.
What follows will read more like a "book report" than a book review, but, with a modicum of commentary interspersed throughout, it offers an outline of the key points of each chapter, with the goal of piquing the reader’s interest in this interesting compilation. The ten chapters are: I. Nine Democracies and the Problems of Detention, Surveillance, and Interrogation, by Mark H. Gitenstein. II. Administrative Detention: Integrating Strategy and Institutional Design, by Matthew C. Waxman III. Long-term Terrorist Detention and a U.S. National Security Court, by Jack Goldsmith. IV. Optimizing Criminal Prosecution as a Counterterrorism Tool, by Robert M. Chesney. V. Better Rules for Terrorism Trials, by Robert S. Litt and Wells C. Bennett. VI. Refining Immigration Law’s Role in Counterterrorism, by David A. Martin. VII. Modernizing FISA: Progress to Date and Work Still to Come, by David S. Kris. VIII. National Security Issues in Civil Litigation: A Blueprint for Reform, by Justin Florence and Matthew Gerke IX. Looking Forward, not Backward: Refining U.S. Interrogation Law, by Stuart Taylor Jr. and Benjamin Wittes. X. Targeted Killing in U.S. Counterterrorism Strategy and Law, by Kenneth Anderson
Since the start of the modern civil rights era, the notably harsh laws of citizenship and immigration in the United States have experienced some mitigation in the critical distinctions between citizens and aliens. Societies became “soft” on the “inside” while grappling with questions of how “hard” to be toward the “outside,” the border. The retrograde effects of globalization together with our security and imperial obsessions since 9/11, however, have led to a hardening of distinctions both on the inside and toward the outside. Immigration and citizenship have become more Schmittian affairs where the worthy “us” is confronted by the enemy “other.” The power of exclusion and especially of deportation has again grown more important (as it was during the Red Scares of the post-WWI and Cold War periods), making citizenship more important. As the government seeks to undermine constitutional protections in three ways — making it irrelevant who you are, where you are, or whose custody you are in — the benefits of the legal status of “citizen” seem to be in play. At the same time, we know the importance of citizenship as a mechanism for the defense of rights, perhaps especially of minority rights. Indeed, liberal immigration scholars have spent most of the past generation fretting over the discriminatory “bonus” offered by citizenship and have worked “human rights” and “due process” discourses to undermine that bonus. Since 9/11, however, a series of important Supreme Court cases has left us with only a murky sense of what rights apply to whom and where and how much of a guarantee “citizenship” offers. In this essay, we review the salient cases and seek to identify some current baselines around these “who, where, and whom” questions.
The central question of whether, and when, a country’s domestic rights regime constrains government action beyond national borders has largely escaped comparative analysis. This Article seeks to fill that gap. Part I provides a typology of basic approaches to rights beyond borders, which I label country, compact, and conscience. Country-based reasoning takes a strictly territorial approach to regulating the government’s actions outside the national territory, even vis-à-vis citizens. Compact-based reasoning focuses on the entitlement of a given individual to assert rights against the government based on his or her status as one of the governed, regardless of territorial location. Conscience-based reasoning holds that a government should act the same way beyond its borders as it does within them.
Part II uses this framework to analyze the evolving jurisprudence of extraterritorial rights in three common law jurisdictions: the United States under the U.S. Constitution, Canada under the Canadian Charter of Rights and Freedoms, and the United Kingdom under the U.K. Human Rights Act. This comparative analysis reveals the continued tenacity of country-based reasoning, which privileges the role of territory in conceptualizing domestic rights, even in an age of “globalization.” In the end, the most generative source of more expansive readings of domestic rights provisions might not be any comprehensive theory about the extraterritorial reach of rights, but rather individual judges’ own sense of fundamental fairness and the perceived need for a minimum set of judicially enforceable legal constraints on the action of the political branches. To date, such judicially enforceable constraints continue to be provided by domestic, rather than international, rights guarantees.
“When RUF Gets Rough It Looks Like R2P: Comparing Micro-Level Rules for Use of Force in Post-Conflict Countries Challenged by Ethnic, Tribal, and Cultural Violence to Macro-Level Concepts of Humanitarian Intervention and Responsibility to Protect”
Commander Scotch Perdue, JAGC, USN
Naval Law Review, Volume 60, 2010, 189
A head of state, faced with mounting evidence that another sovereign is either committing or condoning massive atrocities against the human rights (“HR”) of his or her own people, does not currently have an independent or collective responsibility under international law to intervene – but should there be one? Diplomatic efforts and various types of sanctions aimed at constraining such conduct continue to be an option, but if it becomes apparent that nothing short of use of force will suffice, what would be the legal basis for taking such action?
The Secretary-General of the United Nations intends to develop such a legal framework, called responsibility to protect or “R2P,” to protect persons from large scale HR abuses, but much still needs to be developed at an international level to define how, when, and what amount of force may be used to stop HR abuses in a foreign state. After all, if a state is unwilling or unable to intervene in HR abuses, the country still remains a diplomatic and political entity that must be respected to preserve international peace and security. Military commanders serving in so called “post-conflict” countries sometimes find themselves on the horns of a very similar dilemma when, through a clash of cultures, they face local, host nation (“HN”) officials who are unwilling or unable to stop perceived HR abuse—and may actually be officially sanctioning the abuse. Yet the commanders must maintain relationships with these officials to continue to work collectively toward local peace and security.
Just as R2P would provide international legal authority to intervene and prevent HR abuses with military force, rules for the use of force (“RUF”) generally provide legal authority for military commanders to intervene with force, up to and including deadly force, as a last resort to prevent an unlawful killing or serious bodily harm. However, having such legal authority does not necessarily make it more likely that such authority will be exercised. To the contrary, because a gun doesn’t have to be fired to “influence the debate,” simply having a weapon and the clear authority to use it may actually decrease the likelihood that a round has to be fired to prevent or minimize harm. Ultimately, this article argues for an extremely gradual transition in both micro and macro contexts from externally-enforced to internally-embraced efforts to preserve progress and prevent backsliding into an environment that permits HR violations.
Patrick J. Donaldson, American University, Washington College of Law
American Intelligence Journal (2010)
The structure of intelligence oversight has been debated recently as the need is seen to grow. The current structure of intelligence oversight has been rendered ineffective by partisanship and lack of area expertise. Reform of congressional oversight has proven itself necessary. There have been numerous and varied proposals on how to reform the intelligence community in recent years. However, the 9/11 Commission’s use of a single, joint committee like the Joint Committee on Atomic Energy would not function as effectively as similar examples in the past. Regardless, every proposal of the 9/11 Commission has been addressed in some form except reform of oversight, even if not as a joint committee.
Through understanding the need for oversight; current structure and flaws of congressional oversight; and the various proposals to reform oversight, Congress can be an effective safeguard against potential abuses of civil rights, civil liberties and resources in the intelligence community. In this Article, I argue for the necessity of oversight in the intelligence context to prevent serious abuses and the balance between oversight and sensitive information. I then analyze Congress’s power to review and make policy for executive branch intelligence agencies and outline the difficulties facing oversight, including: trying to oversee highly trained secret keepers and the current structure of politics and oversight. This Article then critiques proposed solutions to effective oversight reform. In the face of reform proposals, such as the 9/11 Commission’s mandate for a joint committee similar to the Joint Committee on Atomic Energy used from the 1940s through the 1970s, this Article responds, not by changing the committee structure, but by consolidating jurisdiction into the existing intelligence committees and making service on those committees a desirable post. Additionally, it asserts the Government Accountability Office should have audit authority over the intelligence community, as has been debated in Congressional hearings recently.