nationalsecuritylaw Al-Bahlul v. United States; Hamdan v. United States (CMCR appellant’s briefs) (Feb. 24, 2011)

March 4, 2011

* Al-Bahlul v. United States; Hamdan v. United States (CMCR appellant’s briefs) (Feb. 24, 2011)

On February 24th, as directed by the en banc Court of Military Commission Review, the appellants in al Bahlul and Hamdan filed briefs addressing two questions:

I. Assuming that Charges I, II, and III allege underlying conduct (e.g., murder of protected persons) that violates the law of armed conflict and that “joint criminal enterprise” is a theory of individual criminal liability under the law of armed conflict, what, if any, impact does the “joint criminal enterprise” theory of individual criminal liability have on this Court’s determinations of whether Charges I through III constitute offenses triable by military commission and whether those charges violate the Ex Post Facto clause of the Constitution? See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 611 n. 40 (2006).

II. In numerous Civil War and Philippine Insurrection cases, military commissions convicted persons of aiding or providing support to the enemy. Is the offense of aiding the enemy limited to those who have betrayed an allegiance or duty to a sovereign nation? ee Hamdan v. Rumsfeld, 548 U.S. 557, 600-01, n. 32, 607, 693-97 (2006).

The brief in al-Bahlul is available here. The brief in Hamdan is here. The government’s response is due on March 11th, and oral argument takes place at 11:30 am on Thursday March 17th at the Court of Appeals for the Federal Circuit. For more commentary on these briefs, including some key excerpts and also an unexpected reference to the scope of targeting and detention authority, see here.

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nationalsecuritylaw Call for Papers and Participants: the 4th Annual National Security Law Faculty Workshop/IHL Training (at the US Army JAG School, May 19 and 20)

March 4, 2011

* Call for Papers and Participants: the 4th Annual National Security Law Faculty Workshop/IHL Training (at the US Army JAG School, May 19 and 20)

I’m very pleased to announce the call for papers and participants for the 4th Annual National Security Law Faculty Workshop/IHL Training, which will take place on May 19 and 20 at the Army JAG School in Charlottesville. See the attached announcement.

As in the past, the event is designed to let JAGs and civilian law profs interact with one another, in the context of two days’ worth of article workshops and short blocks of instruction or debate relating to the law of armed conflict. The event has been substantively very rich in the past, not to mention a whole lot of fun. We expect it to be more so on both counts this year.

Would-be authors: There are five author slots for the civilians. We are not restricting submissions to “junior” profs, as we did in the past, though we certainly do hope there will be submissions from junior profs. In terms of subject-matter, we do anticipate selecting several papers with an IHL focus, but as in the past we also want to include at least some papers that address other aspects of national security and the law. The only real restraint is that we want the papers to be workshoppable, and thus will not select anything that will be in print already, or so far along in the publication cycle that it cannot be substantially revised in the wake of the workshop. Please note that it is fine to submit a mere abstract, though the more detail the better. The main thing is that you must have a thorough draft paper ready for circulation by May 1st

Would-be attendees: There are fifteen slots for civilian, government, and military attendees other than the five authors (and the JAGs who already are in residence at the JAG School). There are no particular criteria for selection, other than a desire on our part to ensure a rich variety of participants and viewpoints. Please note that all attendees are expected to read all the papers in advance, and to be prepared to share comments and criticisms during the workshop sessions. Some attendees also will serve as the discussants for the papers.

Deadlines: Time is tight, alas. Please send your request to attend, or submit your paper/abstract for consideration, by email to me and to Geoff Corn (rchesney, gcorn) no later than MARCH 25th. Again, it’s ok if you have only an abstract or very rough draft at that point.

Note that this is a pay-your-own way event, though there are no registration or event fees.

Please pass this along to anyone who you think might be interested.

2011 announcement.doc


nationalsecuritylaw more forthcoming scholarship

March 4, 2011

* more forthcoming scholarship

Habeas Corpus After 9/11: Confronting America’s New Global Detention System

Jonathan Hafetz (Seton Hall)

NYU Press 2011

The U.S. detention center at Guantánamo Bay has long been synonymous with torture, secrecy, and the abuse of executive power. It has come to epitomize lawlessness and has sparked protracted legal battles and political debate. For too long, however, Guantánamo has been viewed in isolation and has overshadowed a larger, interconnected global detention system that includes other military prisons such as Bagram Air Base in Afghanistan, secret CIA jails, and the transfer of prisoners to other countries for torture. Guantánamo is simply—and alarmingly—the most visible example of a much larger prison system designed to operate outside the law.

Habeas Corpus after 9/11examines the rise of the U.S.-run global detention system that emerged after 9/11 and the efforts to challenge it through habeas corpus (a petition to appear in court to claim unlawful imprisonment). Habeas expert and litigator Jonathan Hafetz gives us an insider’s view of the detention of “enemy combatants” and an accessible explanation of the complex forces that keep these systems running.

In the age of terrorism, some argue that habeas corpus is impractical and unwise. Hafetz advocates that it remains the single most important check against arbitrary and unlawful detention, torture, and the abuse of executive power.

Terrorism as Crime: Toward a Lawful and Sustainable Detention Policy

Jonathan Hafetz (Seton Hall)

Chapter 12 of Habeas Corpus After 9/11: Confronting America’s New Global Detention System (see immediately above)

The book from which this chapter is excerpted traces the history of the habeas corpus litigation after 9/11 that challenged the military detention and trial of prisoners in the "war on terror." Preceding chapters make the case for a broad conception of habeas corpus review, discussing the gaps left by the Supreme Court’s decision in Boumediene v. Bush and arguing why habeas jurisdiction should extend to any detention by or at the behest of the United States. This chapter explains why habeas corpus review also is, in many respects, the start, not the end, of the conversation about law and national security. The chapter thus addresses a question at the heart of much of the habeas corpus litigation: who may be detained as a combatant and what is the legitimate scope of the government’s military detention power. The chapter advocates a criminal law model rather than a military model in the treatment of suspected terroists. The chapter thus considers and rejects arguments for indefinite executive detention, military commissions, or other alternative forums to the criminal justice system, such as national security courts. Finally, the chapter describes how the criminal justice system provides an important check not only against unlawful detention but also against torture and other mistreatment.

Dimension I: Habeas Corpus as a Common Law Writ

Eric M. Freedman (Hofstra University – School of Law)

46 Harvard Civil Rights- Civil Liberties Law Review (forthcoming 2011)

This article is the first part of a projected three-part work based on the extensive exploration of archival sources in America and England that has been conducted in the past several years by myself and other researchers. It advances two key claims: First, in researching the history of habeas corpus we need to get beyond the label "habeas corpus." The constitutional importance of the writ is in its function not its name. Demands for release from unlawful imprisonment could be made in the seventeenth and eighteenth centuries by seeking a variety of writs or even by pleadings that asked for no particular writ at all. Hence for Suspension Clause purposes we should adopt a functional definition of "habeas corpus" to mean a demand, however denominated, challenging the legal basis of a detention and calling upon the custodian to justify it.

Second, the broader group of cases thus defined shares important features of judicial methodology. The judges worked vigorously (a) to resolve the case speedily on a fact-specific and pragmatic basis; and (b) with respect to those issues of law necessarily involved (I) to overcome any procedural barriers to a prompt merits ruling and (II) if a legal question seemed dis-positive, to frame it specifically and isolate it for adjudication.

I conclude by suggesting why historical research, legal scholarship, and judicial proceedings (including current ones involving Guantanamo) might benefit from applying these thoughts.


nationalsecuritylaw forthcoming scholarship

March 4, 2011

* Forthcoming Scholarship

The Signaling Function of Religious Speech in Domestic Counterterrorism

Texas Law Review, forthcoming

Aziz Z. Huq (University of Chicago Law School)

Email: huq

A wave of attempted domestic terrorism attacks in 2009 and 2010 has sharpened attention to the threat of domestic-source terrorism inspired or directed by al Qaeda. Seeking to preempt that terror, governments face an information problem. They must separate signals of terrorism risk from potentially overwhelming background noise and persuade juries or fact finders that those signals warrant coercive action. Selection of accurate signals of terrorism danger in the information-poor circumstances of domestic counterterrorism is arguably a central challenge today for law enforcement tasked with preventing further terrorist attacks. To an underappreciated extent, governments have used religious speech as a proxy for terrorism risk in order to resolve this signaling problem. This Article analyzes the legal and policy significance of state reliance upon religious speech as a predictor of terrorism risk. Constitutional doctrine under the Religion Clauses does recognize interests implicated by the signaling function of religious speech. Yet analysis suggests that such doctrinal protection is fragile. Symptomatic of a wider inflexibility of pre-9/11 constitutional doctrine, this doctrinal protection shows little capacity for responsive change. The absence of constitutional barriers, however, does not mean government should persist in relying on religious speech as a signal. Rather, analysis of counterterrorism policy concerns suggests another path. Institutional considerations and an emerging social science literature on terrorism suggest that religious speech is ill suited to the signaling role it now plays. Instead, empirical social science on terrorism points to the epistemic superiority of a different signal: the close associations of a terrorism suspect. The Article concludes by examining the constitutionality of such a signal and elaborating ways that insight from the new social science of terrorism can be realized without compromising important individual interests.

Mechanisms for Eliciting Cooperation in Counter-Terrorism Policing: Evidence from the United Kingdom

Aziz Z. Huq (University of Chicago Law School)

Tom Tyler (NYU – Department of Psychology)

Stephen Schulhofer (NYU) – School of Law)

Email: huq

This study examines the effects of counterterrorism policing tactics on public cooperation amongst Muslim communities in London, U.K. It tests a procedural justice model developed in the context of studying crime control in the United States. The study reports results of a random-sample survey of 300 closed and fixed response telephone interviews conducted in Greater London’s Muslim community in February and March 2010. It tests predictors of cooperation with police acting against terrorism. Specifically, the study provides a quantitative analysis of how perceptions of police efficacy, greater terrorism threat, and the choice of policing tactics predict the willingness to cooperate voluntarily in law enforcement efforts against terrorism. Cooperation is defined to have two elements: a general receptivity toward helping the police in anti-terror work, and a specific willingness to alert police upon becoming aware of a terror-related risk in a community. We find that procedural justice concerns prove better predictors for both measures of cooperation in counter-terrorism policing among British Muslims. Unlike previous studies of policing in the United States, however, we find no correlation between judgments about the legitimacy of police and cooperation. Rather procedural justice judgments influence cooperation directly.

Why Does the Public Cooperate with Law Enforcement? The Influence of the Purposes and Targets of Policing

Psychology, Public Policy & Law, Forthcoming

Aziz Z. Huq (University of Chicago Law School)

Tom Tyler (NYU – Department of Psychology)

Stephen Schulhofer (NYU) – School of Law)

Email: huq

This study addresses the extension of the “procedural justice” model for understanding public cooperation with law enforcement to new policing contexts and new minority populations. The study draws on four recent surveys of public reactions to policing against crime or against terrorism across different populations to examine whether the changing purpose of policing, or changes in the communities targeted for heightened policing have an effect on how cooperative behaviors are elicited. This paper presents evidence that procedural justice mechanisms are robust across a variety of contexts and populations in the United States. Three issues in particular are addressed. First, whether the procedural justice model applies across policing functions and policed populations. Second, whether the perception that another group is the target of disproportionate policing efforts has any effect on the cooperation behavior of a non-targeted population. And third, whether people attend to different aspects of policing behavior if their community is targeted for heightened policing attention.

The Law: John Yoo and the Republic

Lou Fisher (The Constitution Project)

41 Political Science Quarterly 177 (2011)

In his articles, books, and legal memoranda for the U.S. Department of Justice, John Yoo is well known for favoring broad and even exclusive presidential power in the field of national security. Less understood is his dependence on the British model and the prerogatives it extended to the king over external affairs. In his writings, Yoo devotes little attention to the framers’ rejection of British executive prerogatives. Even less does he acknowledge their commitment to a republic, a form of government in which sovereign power is vested not in an executive but in the people.