* forthcoming scholarship
“The Ivory Tower at Ground Zero: Conflict and Convergence in Legal Education’s Responses to Terrorism”
Roger Williams University School of Law
Journal of Legal Education, Vol. 60, p. 373, 2011
Roger Williams Univ. Legal Studies Paper No. 100
As the tenth anniversary of the September 11 attacks approaches, the legal academy has eased into a consensus that masks underlying disagreements and pedagogical gaps. Most scholars now accept the need for constraints on government, including some form of judicial review, both to protect rights and to oblige officials to think beyond short-term solutions. However, debate continues on the need for new legislation on detention of alleged terrorists, with some arguing that a statute would clarify disputes among courts about the appropriate legal standard and the admissibility of evidence, while others argue that enactment of a statute will encourage a new round of government overreaching.
Consensus in the realm of pedagogy has been less salutary. Most scholars have settled for a doctrinal perspective, instead of engaging students in a conversation about how institutions work “on the ground.” This article suggests three steps to enrich this arid doctrinalism. First, law schools should enhance clinical education opportunities that illuminate the interplay of principle, affect, and habit in lawyering: a lawyer who would gain the trust of a detainee, or for that matter of a government official making difficult choices, needs more than abstract knowledge of legal doctrine. Second, we should teach that social phenomena, such as path-dependence, affect the path of law, as the Bush administration discovered when its early unilateralism triggered a loss of credibility with the courts that made subsequent concessions appear inadequate. Third, our pedagogy should focus on how the “political economy” of legal institutions affects outcomes, asking students whether the aggregation of counterterrorism and other responsibilities in an agency like the Department of Homeland Security makes us safer. Taking these steps will help lawyers of the future better address terrorism and its legal consequences.
“The Dogs that Did Not Bark: The Silence of the Legal Academy during World War II”
Sarah H. Ludington (Campbell University School of Law)
Journal of Legal Education, Vol. 60, p. 397, 2011
[no abstract available]
Joseph Margulies (Northwestern University School of Law)
Hope Metcalf (Yale Law School)
Journal or Legal Education, Vol. 60, p. 433, 2011
[no abstract available]
"A Cup of Coffee After the Waterboard: Seemingly Voluntary Post-Abuse Statements"
DePaul Law Review, Vol. 59, No. 3, 2010
GREGORY S. MCNEAL, Pepperdine University School of Law
This symposium article focuses on the impact that abusive and coercive interrogation techniques will have on the admissibility of statements derived from non-abusive, non-coercive interviews. Were subsequent, legal, and humane interviews indelibly impacted by the "taint of torture" regardless of how they were conducted? Accordingly, are statements made in those subsequent non-coercive settings inadmissible on voluntariness grounds? This article first details the coercive interrogation techniques authorized against suspected terrorists detained in Guantanamo Bay Cuba. Next, the article details the changing circumstances of detainee custody and treatment to set the stage for a discussion of whether earlier abuses, if corroborated, will invalidate subsequent statements made by the victims of that abuse. I explain how the U.S. government, recognizing that its earlier interrogation tactics may have jeopardized its legal case against the detainees implemented "clean teams." Building off of these factual premises, I next synthesize the tests a judge will need to apply in order to determine the admissibility of seemingly voluntary post-abuse statements. In this synthesis I highlight how factors such as the time between statements, change in location, change in identity of interrogators, nature of the previous unlawful interrogation methods, and use of illegally procured statements as leverage in obtaining new statements each impact the admissibility analysis.
"President Obama and the Changing Cyber Paradigm"
Journal of the National Security Forum, 2011
ERIC TALBOT JENSEN, Fordham University – School of Law
Among the most important issues for American National Security is the national response to the growing threat from cyber activities. This threat is both ubiquitous and potentially catastrophic as recently demonstrated by both the recent decision by the UK to prioritize cyber capabilities over putting in service an air-capable aircraft carrier and the targeted effectiveness of the STUXNET worm. The evolving cyber paradigm will force the United States to reevaluate the way in which it thinks of both national security and the concept of armed conflict. To combat this threat, President Obama must refocus America’s attention, by both reallocating the primary governmental responsibility for cyber security and overhauling the public-private partnership that he has made a key component of his cyber strategy.
"Circumventing Accountability: Private Military Companies and Human Rights Abuses"
MARCO FANARA, United Nations Mandated University for Peace
To date there have been too few successful criminal and civil court cases against private military companies under both international law and national law for human right violations. Albeit there are those who argue the reasons for this is due to a lack of existing law, there are also those who argue the necessary laws do exist, however they have yet to be fully utilized. To provide further analysis and insight into why this might be the case, this paper aims to provide the reader with an extensive overview of existing jurisprudence that may be used to find accountability for violations in international law by private military companies. More specifically this paper will examine existing international law and domestic law, including criminal and civil possibilities. To do so, the case study of American private military companies alleged to have committed violations of international law while operating in Iraq will be utilized. Findings suggest an overall lack of political will rather than a lack of applicable law.
"Criminalizing Humanitarian Relief: Are US Material Support for Terrorism Laws Compatible with International Humanitarian Law?"
JUSTIN A. FRATERMAN, Georgetown University Law Center
In the wake of the US Supreme Court’s recent decision in Holder v. Humanitarian Law Project there has been much discussion about the potentially chilling effect that US material support laws may have on the provision of humanitarian assistance in both disaster and war zones. This essay aims to consider this issue in depth, providing an analysis of the material support legal regime and the Humanitarian Law Project decision, its potential legal impact on humanitarian organizations and the interaction between these laws and international law. In so doing, this essay will advance a number of arguments. First, it posits that the material support laws do potentially pose a serious threat to the provision of much needed humanitarian relief. Next, it is argued that that the material support laws as applied to humanitarian relief organizations place the US in violation of its legal obligations under international humanitarian law, more specifically under the Geneva Conventions. It then considers the impact of this conflict between the statutes and the Conventions on the US domestic plane and looks at the literature and jurisprudence on the self-execution of treaties to examine whether the Conventions are judicially enforceable in US courts in order to assert that some provisions of the Conventions could arguably humanitarian workers and organizations facing criminal prosecution with a defense against allegations of providing material support. Finally, this essay considers a possible enlarged humanitarian exception to the existing statutory regime, as well as the particular difficulty faced by the International Red Cross movement in adapting its activities to ensure compliance with the material support laws.
"Our ‘Jack Bauer’ Culture: Eliminating the Ticking Time Bomb Exception to Torture"
Florida Journal of International Law, Vol. 22, No. 2, 2010
KATE KOVAROVIC, American University – Washington College of Law
After eight successful seasons on the air, Americans have come to trust Jack Bauer of 24 to get the job done. Regardless of the circumstances, Jack always succeeds where most men cannot; Jack can always find a way to break a terrorist suspect and obtain the exact information he needs to save the world. Because of this unrealistic portrayal of the successes of torture, Americans have also come to expect that Jack Bauer is not the exception, but the norm. The War on Terror has introduced a new legal theory to the American consciousness: that of the ticking time bomb exception. Despite the country’s pledge to uphold the principles of the ICCPR and the Convention against Torture, more and more Americans are rallying around the ticking time bomb exception, which permits government officials to torture a suspect who might possess critical information regarding an imminent security threat. This paper seeks to convey that the ticking time bomb exception is strictly prohibited under national and international law, and to place the ticking time bomb exception in a more realistic context for the American public.