nationalsecuritylaw forthcoming scholarship

February 28, 2011

* Forthcoming Scholarship

From the Michigan State Journal of International Law (note that these are just the abstracts; the papers themselves are not posted on the journal’s site yet, but instead should be accessed via Westlaw, Lexis, or in hard copy):

The Michigan State Journal of International Law is proud to announce that its latest publication is now in print, as well as being available on Lexis-Nexis and Westlaw. Volume 19, Issue 1 of the Journal is entitled "Is There a War on Terror? Torture, Rendition, Guantanamo, and Obama’s Preventive Detention."

"The Supreme Court and House of Lords in the War on Terror: Inter Arma Silent Leges?"
-John Ip (Citation: 19 Mich. St. J. Int’l L. 1 (2010-2011))

“This Article is an attempt to situate the major decisions of the Supreme Court and the House of Lords concerning aspects of the War on Terror in the historical context of judicial behavior in times of war or crisis. The conventional account of judicial behavior during such times posits that courts are ineffective guarantors of individual liberty because they inevitably defer to executive claims of national security. Only after the period of war has passed do the courts reassert themselves, resulting in a cyclical pattern of contraction and expansion of liberty. How do the relevant post–9/11 decisions of the Supreme Court and House of Lords fit within this pattern, if at all? This Article considers five possible ways of understanding the relevant decisions in light of the conventional account of judicial behavior.”

"A Lost War on Terror: Forgotten Lessons of the Russian Empire"
-Alexander N. Domrin (Citation: 19 Mich. St. J. Int’l L. 63 (2010-2011))

“Emergency powers, including introduction of a state of exception, cannot and should not be exercised ‘beyond constitutional control.’ It is true that, in many countries of the world, even constitutional provisions cannot always firmly and effectively contain the dictatorial instincts of authorities; but that is not a justification to lift ‘constitutional control’ altogether. On the contrary, it is quite easy to imagine what would happen if this last obstacle, the Constitution, were to be removed from the way of some politicians and social forces thirsting for unlimited power. Yet, a question remains: what happens if a constitution and the whole legal order of a nation ‘fails to provide for whatever emergency action may become necessary to defend the state?’ What happens if, using a modern term, a nation loses a “War on Terror?” The catastrophe of the Russian Empire gives an answer to such questions and offers one of the most vivid lessons and graphic illustrations in the history of the world.”

"Halting Military Trials at Guantanamo Bay: Can the President Call a Time-Out?"
-Kyndra Rotunda (Citation: 19 Mich. St. J. Int’l L. 95 (2010-2011))

“This Article examines President Obama’s decision to unilaterally halt military trials and analyzes that decision in the context of applicable law, including the Military Commissions Act of 2006 and the Manual for Military Commissions. It also discusses and analyzes the law prohibiting unlawful command influence and ultimately concludes that President Obama’s decision to halt Guantanamo trials, over the objection of the presiding military judge (Colonel Pohl), may have violated governing law and may have amounted to unlawful command influence.”

"Taking Human Rights Higher in the Fight Against Terrorism in South Africa"
-Mtendeweka Owen Mhango (Citation: 19 Mich. St. J. Int’l L. 105 (2010-2011))

“[Mohamed v. President of the RSA] is the starting point of any discussion about South Africa’s involvement in the global War on Terror because it illustrates the weak legal framework that existed prior to the adoption of the [Protection of Constitutional Democracy Against Terrorist and Related Activities Act 33 of 2004]. The second is to demonstrate that in the subsequent years following Mohamed, South Africa adopted a broad piece of anti–terrorism legislation, which has made South Africa a good partner for the United States in the War on Terror. The Article argues that the judgment in Mohamed, which is progressive and should be welcomed, follows a line of cases recognising the importance of the right to life and human dignity under the Constitution. The article further argues that while the constitutionality of the [2004] Act has not been tested by the courts, Mohamed provides a definitive statement of South African law about the lawful treatment of terror suspects and will likely influence future interpretation of the [2004] Act.”

"A War, Yes; Against Terror, No"
-John S. Baker, Jr. (Citation: 19 Mich. St. J. Int’l L. 119 (2010-2011))

“[T]he Court’s treatment of due process, as well as habeas corpus, both in Hamdi [v. Rumsfeld] and Rasul v. Bush confused the realms of war and domestic law enforcement. Prior to, and since those decisions, disagreements about fighting foreign terrorism have turned on whether the appropriate response involves “war” or “law enforcement.” In this author’s view, the Bush Administration was correct to treat the attacks as acts of war, rather than crimes; but wrong to label the U.S. response a “War on Terror.” This rhetorical confusion seems to indicate that within the Bush Administration there were conflicting understandings concerning the Constitution’s allocation of powers in war as distinguished from law enforcement.”

"The T-Team"
-Michael P. Scharf (Citation: 19 Mich. St. J. Int’l L. 129 (2010-2011))

This is the Keynote Address delivered by Michael P. Scharf at the Michigan State Journal of International Law’s 2010 Symposium, "Is There a War on Terror? Torture, Rendition, Guantanamo, and Obama’s Preventive Detention.” Scharf’s remarks were focused on “the extraordinary story of how, in the months following the attacks of 9/11, the legal policy of the U.S. government with respect to the War on Terror was hijacked and dictated by a cabal of four government lawyers who called themselves the ‘War Council.’ They could just as easily have been called the ‘Torture Team,’ or ‘T-Team’ for short because together, this team of highly–placed government lawyers produced a series of legal memoranda—which deliberately ignored adverse precedent, misrepresented legal authority, and were written to support a pre–ordained result [in the ‘War on Terror’].”

nationalsecuritylaw call for papers – “Secrecy, National Security, and the Vindication of Constitutional Law” (Milan, Italy, Dec. 1-2, 2011)

February 28, 2011

* call for papers – "Secrecy, National Security, and the Vindication of Constitutional Law" (Milan, Italy, Dec. 1-2, 2011)

The International Association of Constitutional Law, Research Group on Constitutional Responses to Terrorism, has announced a very tempting call for papers, both in terms of subject-matter and location. Here are the details:

On behalf of the IACL Research Group on Constitutional Responses to Terrorism, we

hereby invite proposals in the form of abstracts for papers to be delivered at an international

conference on “Secrecy, National Security, and the Vindication of Constitutional Law” hosted by

Bocconi University in Milan, Italy, on December 1-2, 2011.

In virtually every nation, assertions of the need for secrecy on matters of counterterrorism

policy and practice have created tensions with efforts to ensure transparency, accountability and

procedural fairness. We are open to proposals that seek to bring comparative analysis to bear on

how best to mediate these tensions. Issues that authors might want to address could include, for


– the challenge of secrecy to democratic lawmaking on counterterrorism policy;

– the use of “secrecy” privileges to block litigation challenging allegedly illegal government


– the use of classified evidence against individuals or organizations to freeze their assets,

designate them as terrorist, or justify other restraints on their liberty;

– the use of “anonymous” witnesses who testify without revealing their identity;

– the closure of criminal trials and other proceedings to the public;

– and the adoption of secret coercive programs without transparent legal justification, such as

the US’s coercive interrogation practices or targeted killing program.

Scholars are invited to address in a comparative frame the ways that various constitutional

systems have sought to balance the tension between accountability, transparency, and fairness on

the one hand, and secrecy and security on the other.

The conference will last a day and a half and will also feature the participation of Lord

Justice Stephen Sedley (Court of Appeal of England and Wales) as well as professors Daphne

Barak-Erez (University of Tel Aviv), David Cole (Georgetown University), Kent Roach

(University of Toronto), Martin Scheinin (European University Institute) and Arianna Vedaschi

(Bocconi University).

Abstract proposals for papers of max. 500 words should be emailed, along

with the author’s cv, to Federico.fabbrini by April 24, 2011. Once abstracts are accepted,

papers will be due November 1, 2011 to permit exchange of drafts prior to the conference.


Prof. David Cole, Georgetown University, Research Group Chair

Prof. Arianna Vedaschi, Bocconi University, Host

Federico Fabbrini, European University Institute, Research Group Coordinator

nationalsecuritylaw United States v. Hamdan (E.D. Pa.) (extradition to face material support charges)

February 28, 2011

No, not that Hamdan…

* United States v. Hamdan (E.D. Pa.) (extradition to face material support charges)

From DOJ’s press release:

PHILADELPHIA – Moussa Ali Hamdan, 38, a dual citizen of the United States and Lebanon and a former resident of Brooklyn, N.Y., made an initial appearance in U.S. District Court in Philadelphia today after being extradited from Paraguay. He is being held pending a detention hearing.

Hamdan is among several defendants charged in a conspiracy to provide material support to Hizballah, a designated foreign terrorist organization. He was indicted Nov. 24, 2009, along with nine co-defendants. Hamdan was taken into U.S. custody in Asuncion, Paraguay, on Thursday, by U.S. Marshals who escorted him to Washington, D.C., where members of the FBI’s Joint Terrorism Task Force took him into custody.

At the time of the indictment, Hamdan had left the United States. On June 15, 2010, Paraguayan authorities arrested him in the Tri-Border Area of Paraguay for the crime of material support of terrorism.

Hamdan is charged in 28 of the 31 counts in the indictment, including conspiring to provide material support to Hizballah in the form of proceeds from the sale of counterfeit money, stolen (genuine) money and fraudulent passports. According to the indictment, Hamdan and several other defendants were also charged with several counts of transporting stolen goods, trafficking in counterfeit goods and making false statements to government officials.

According to a related criminal complaint, Hamdan began purchasing purportedly stolen cellular telephones from a cooperating witness acting as an agent of the government and participated in the purchase and transportation of purportedly stolen goods on numerous occasions. These stolen goods included cellular telephones, laptop computers, Sony Play Station 2 systems and automobiles, which the conspirators caused to be transported to destinations outside Pennsylvania, including overseas destinations such as Lebanon and Benin (Africa). Hamdan also allegedly bought counterfeit goods — namely, counterfeit Nike® shoes and Mitchell & Ness® sports jerseys — from the cooperating witness.

The complaint details efforts by defendants Moussa Ali Hamdan and his co-defendants to sell the cooperating witness counterfeit U.S. currency for the purpose of raising funds for Hizballah. In total, the conspirators provided the cooperating witness with approximately $10,000 in counterfeit U.S. currency. The complaint also alleges that certain of Hamdan’s co-defendants generated additional funds for Hizballah by selling fraudulent passports. The cooperating witness and the defendants participated in the purchase of two fake passports — one from the United Kingdom and one from Canada — for the benefit of Hizballah. Hamdan allegedly agreed to pay $10,000 towards the purchase of these passports, in order to satisfy a debt he owed to the cooperating witness.

If convicted of all charges, Hamdan faces a statutory maximum sentence of 260 years in prison.

nationalsecuritylaw upcoming event: Cyberseucrity: Law, Privacy, and Warfare in a Digital World (Harvard March 4)

February 28, 2011

* upcoming event: Cyberseucrity: Law, Privacy, and Warfare in a Digital World (Harvard March 4)

The Harvard National Security Journal and the Harvard National Security & Law Association present their Second Annual Symposium:

Cybersecurity: Law, Privacy, and Warfare in a Digital World

Friday, March 4th
12:00pm – 6:30pm
Harvard Law School, Hauser 104
Live Webcast at
Event Website:
Lunch Provided

12:00-1:00: The Future of the Internet: A Lunchtime Debate
Jonathan Zittrain – Professor, Harvard Law School
Stewart Baker – Former General Counsel, National Security Agency

1:15-2:45: Privacy Concerns in Cybersecurity
Kevin Bankston – Senior Staff Attorney, Electronic Frontier Foundation
Dr. Joel Brenner – Former National Counterintelligence Executive
Richard A. Falkenrath – Former Deputy Homeland Security Advisor and Deputy Assistant to the President
David Hoffman – Director of Security and Privacy Policy, Intel Corporation
Susan Landau – Elizabeth S. and Richard M. Cashin Fellow, Radcliffe Institute, Harvard University, Moderator

3:00-4:30: Defense and Deterrence in Cybersecurity and Cyberwarfare
Steven Chabinsky – Deputy Assistant Director, Cyber Division, FBI
Duncan Hollis – Associate Professor of Law, Temple University Beasley School of Law
Martin Libicki – Senior Management Scientist, RAND Corporation
Noah Shachtman – Editor, "Danger Room," Wired
Eric Rosenbach – Faculty Affiliate, Belfer Center for Science and International Affairs, Harvard University, Moderator

5:00-6:30: Keynote Address by Steven G. Bradbury
Former Principal Deputy Assistant Attorney General for the Department of Justice Office of Legal Counsel

Sponsored by the Milbank, Tweed, Hadley & McCloy Fund