nationalsecuritylaw more forthcoming scholoarship

* More Forthcoming Scholarship

The latest issue of the Journal of National Security Law & Policy (JNSLP) is now in print. The contents, with links, are posted below:

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

“The ‘independent watchdog’ of a statutory IG did not expose major shortcomings that otherwise would have gone unnoticed. Nor did the watchdog play a major role in deterring institutional sloth and excess. In certain cases, however, the IG asserted independence that might not have been possible without Section 403q. … The results for the statutory IG may charitably be described as ‘mixed.’”

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

“It is impossible to have a meaningful debate over whether a civilian court or a military commission is a more appropriate forum for trying terrorism suspects so long as serious questions remain over whether the commissions may constitutionally exercise jurisdiction over particular offenses and/or offenders. And yet, although a number of defendants have attempted to challenge the jurisdiction of the military commissions – especially under the MCA – none of their cases have managed to produce a decision on the merits from any court higher than the Court of Military Commission Review (CMCR). Instead, the federal courts have generally relied on “abstention” doctrine, holding that challenges to the commissions, including to their jurisdiction, can – and should – be resolved on post-conviction appeal. … [T]he time has long since passed for a careful explication of the issues, the relevant precedents, and the most likely answers.”

The Choice of Law Against Terrorism
Mary Ellen O’ Connell

“The assessment of facts to determine if peacetime law or the law of armed conflict is the correct choice involves the same analysis used in resolving other choice of law questions. Lawyers and judges constantly make choice of law decisions. Choice of law is part of the consideration of every legal matter. … In the terrorism-related cases discussed [here], international law … determines the choice of law. In these cases, choice of international law sends us, generally, to the domestic criminal law of the United States, Pakistan, Yemen, and other states. It does not send us to the law of armed conflict.”

Balancing Security and Liberty in Germany
Russell A. Miller

“The practical consequence of the Constitutional Court’s balancing approach to maintain both security and liberty has been a shifting jurisprudence, a fact that is bound to buoy and bother American conservatives and progressives in equal measure. There is something in the Court’s cases for both camps. Before 9/11, the Court deferred to the legislature’s attempts at promoting security. This inclination, however, changed dramatically in the post-9/11 period. In a string of cases the Court has consistently invalidated national security legislation for failing to adequately take account of constitutionally protected liberty interests.”

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

“China’s legal approach to national security threats, and emergency situations in general, is more complex and subtle and thus richer in implications for comparative law and for understanding transnational legal influence. … Given China’s sheer scale and international importance, its legal reaction to any major issue is a substantial part of the worldwide response. China’s discussion, adoption, and use of legal means to address identified dangers – especially terrorism – have invoked concerns familiar from post-9/11 developments elsewhere and have engaged international legal norms, including ones that emerged in the wake of 9/11 and others that predated and survived it. The Chinese example thus does, or at least should, matter.”

The International Standardization of National Security Law
Kim Lane Scheppele

“Seen from the great height of global comparison, the number of new anti-terrorism laws that criminalize terrorism, block terrorism financing, develop new international monitoring mechanisms to spot terrorists, and increase vigilance about the international movements of persons is extraordinary. Up close, however, widespread compliance [with the Security Council Resolution 1373 framework] looks less like a tightly coordinated strategy than diverse variations on a theme.”

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

"The Justice Department’s Office of Professional Responsibility (OPR) excoriated the legal work done by John Yoo and Jay Bybee of the Office of Legal Counsel on the torture memos, but DOJ’s ultimate decision stopped short of referring Yoo and Bybee for professional discipline. Serious questions remain, particularly since the OPR was unable to obtain the testimony of many high-level officials who played critical roles in authorizing torture. A full-scale investigation, preferably by an independent commission not part of the very department implicated in the wrongdoing, is still necessary. Great Britain conducted such an independent inquiry into the abusive practices used against IRA prisoners in the 1970s, and the United States must do the same. The essential lesson must be that torture and cruel treatment are not policy options, even when lawyers are willing to write opinions blessing illegality."

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

“Stewart Baker has written an enthralling, yet alarming, account of the difficult road we as a country have traveled since 9/11. Part memoir of a veteran senior government official, part lesson in interdepartmental infighting and bureaucratic power games, part philosophical musing on technology’s benefits and potential costs, and part vigorous advocacy enlivened by saucy humor and snappy prose, Baker’s book summons us to think hard about how new technologies – air travel, computer functionality, biotechnology – jeopardize our lives and our way of life even as they also promise to brighten our futures.”

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