nationalsecuritylaw Call for papers: Valparaiso Law Review Special Issue on “Direct Participation in Hostilities”

April 30, 2011

* Call for papers: Valparaiso Law Review Special Issue "The Geneva Conventions in 21st Century Warfare: How the Conventions Should Treat Civilians’ Direct Participation in Hostilities"

From the call for papers:

The Geneva Conventions differentiate between civilians and combatants. While this distinction made sense in the post-World War II world, the lines between civilian and combatant have blurred in recent years. This change in modern warfare tactics has raised questions about the Conventions’ applicability to the modern battlefield, and these questions are more pertinent in light of the on-going conflicts in Afghanistan, Libya, and elsewhere in the Middle East. The Valparaiso University Law Review will devote an entire issue of its 2012 edition to address the implications of this change in warfare.

This Call for Papers serves to solicit participants whose work might be published in the Law Review’s 2012 Special Issue. This special issue will not be a symposium. Instead the Law Review is seeking polished works from leading experts in this field. If you are interested in submitting a paper for publication, please provide a brief abstract of your proposal (preferably no more than 500 words) on or before June 1, 2011. Submissions should be sent electronically to Mr. Jonathan Sichtermann, Editor-in-Chief, Law Review, Valparaiso University School of Law, Jonathan.Sichtermann. After the Law Review has reviewed the submitted abstracts, we will issue invitations for submissions. Completed drafts will be due on October 1, 2011 and the editing process will begin shortly thereafter.

For further information regarding the Special Issue or submission requirements, please contact Mr. Sichtermann directly.


nationalsecuritylaw fixed United States v. Arellano-Felix (S.D. Cal. April 29, 2011)

April 30, 2011

* United States v. Arellano-Felix (S.D. Cal. Apr. 29, 2011)

My apologies for the last message coming through garbled (I just don’t know why sometimes the system sometimes can’t properly transmit text that looks fine when I drafted it). In any event, the content of the last message simply stated that after nine years of litigation and appeals, Mexico has succeeded in extraditing a leader of the Arellano-Felix Organization—Tijuana’s dominant cartel—to the United States to face a RICO prosecution. This may seem an odd fit for a national security law list, but my sense is that the extradition of senior cartel leadership figures is a crucial and increasingly important aspect of US-Mexico cooperation in the counter-cartel effort.


nationalsecuritylaw United States v. Arellano-Felix (S.D. Cal. Apr. 29, 2011)

April 30, 2011

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nationalsecuritylaw United States v. Slough (D.C. Cir. Apr. 22, 2011); Center for Int’l Env. L v. Office of the US Trade Rep. (D.D.C. Apr. 12, 2011)

April 25, 2011

1. United States v. Paul Slough et al. (D.C. Cir. Apr. 22, 2011)

This prosecution arises out of the shootings that occurred at Nisur Square, Baghdad, in 2007. A number of Blackwater employees were prosecuted in the incident, but the district court dismissed the indictment on the ground that it was tainted by misuse of information obtained under a grant of use immunity. Last week, in an opinion posted here, a DC Circuit panel (Williams, joined by Ginsburg and Garland) reversed and remanded for reconsideration.

2. Center for Int’l Environmental Law v. Office of the US Trade Rep. (D.D.C. Apr. 12, 2011)

In this 16-page opinion, Judge Roberts confronted a motion for summary judgment by the USTR in response to the plaintiff’s FOIA request for a document linked to the negotiations associated with the Free Trade Agreement of the Americas. The government argued that the national security exemption from FOIA, Exemption 1, applied to the document because there exists a non-disclosure agreement among the FTAA parties that applies to this particular document and breach of that agreement would “damage foreign relations by causing nations to adopt more rigid trade positions, resulting in less favorable trade terms for the United States.” (slip op. at 3) The government also cited the risk of trade or investment retaliation. (slip op. at 3) Citing Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007), Judge Roberts agreed that the government’s invocation of a national security concern is entitled to “substantial weight.” (slip op. at 6-7). Judge Roberts concluded, however:

“…while disclosure here would breach the understanding with the other participating governments, the claim that such a breach would harm national security is much less compelling than it was in Students Against Genocide, Krikorian, or Azmy, since the United States would be revealing its own position only, not that of any other country. USTR, therefore, has not shown it likely that disclosing document 1 would discourage foreign officials from providing information to the United States in the future because those officials would have no basis for concluding that the United States would dishonor its commitments to keep foreign information confidential.”

Separately, USTR argued that disclosure would harm foreign relations interests in that the document contains the USTR understanding of a key phrase used in trade agreements, a point which USTR prefers to keep indeterminate in the eyes of other states and which USTR thinks could lead to negative consequences if known. Judge Roberts responded that this position is “inconsistent with USTR’s stated goal of maintaining the trust of its negotiating partners.” (slip op. at 13-14), and thus that:

“Although a court must defer to agency affidavits predicting harm to the national security, “[d]eference . . . does not mean acquiescence.” Larson v. Dep’t of State, Civil Action No. 02-1937 (PLF), 2005 WL 3276303, at *9 (D.D.C. Aug. 10, 2005). To the extent that judicial review must at least ensure that statements in agency affidavits are not “called into question by contradictory evidence in the record[,]” Halperin, 629 F.2d at 148, inconsistent predictions of harm from disclosure should not provide the basis for withholding a document. Such inconsistency is an indication of unreliability, and the agency affidavits will be shown no deference with respect to any justification for withholding that involves maintaining the trust of negotiating partners.” (slip op. at 14)


nationalsecuritylaw forthcoming scholarship

April 25, 2011

* forthcoming scholarship

"Drone Attacks Under the Jus ad Bellum and Jus in Bello: Clearing the ‘Fog of Law’"

Yearbook of International Humanitarian Law, Forthcoming

MICHAEL N. SCHMITT, Durham University – Department of Law
Email: schmitt

This article explores the legal issues raised by the use of drones (unmanned aircraft systems) in armed conflicts. In particular it assesses such use from the perspective of the jus ad bellum, that component of international law governing the resort to force by States, and the jus in bello (or international humanitarian law), the international law governing how such force may be applied. It concludes that the law of self-defence provides a clear basis for the extraterritorial use of drones under the jus ad bellum, albeit with certain key limitations. As to the use of drones on the battlefield, the article finds no significant basis for treating drones differently than other weapon systems under the jus in bello. Rather, the key is strict fidelity to the extant norms of international humanitarian law.

"Suing Government Lawyers for Giving Dubious Legal Advice in a National Security Crisis: Notes on How (Not) to Become a Banana Republic"

Yale Law School, Public Law Working Paper No. 229

PETER H. SCHUCK, Yale University – Law School
Email: peter.schuck

Given as a keynote address to a conference on "Official Wrongdoing and the Civil Liability of the Federal Government and Officers" convened by St. Thomas University Law School, this short paper discusses the public interest in vigorous affirmative decisionmaking by government officials, especially "street-level bureaucrats," an interest protected by official immunity doctrine. I first explain the different incentive effects that liability rules tend to create for public and private actors, and then argue that the post-9/11 environment has increased the risk that public officials operating in the national security area will be over-deterred in ways that may jeopardize the public interest. I then explore these issues, and the law of official immunity, in the specific context of the pending Bivens action brought by terrorist Jose Padilla against John Yoo, an author of the so-called "torture" memos. I conclude that the district judge wrongly denied Yoo the immunity, that the Ninth Circuit should reverse that decision, that personal liability is a perverse method for seeking to hold public officials in Yoo’s situation accountable for erroneous legal advice (if that’s what it was), and that the existing official immunity, properly understood and applied, should prevent courts from being used to exact political vengeance for unpopular legal interpretations in areas of legal uncertainty.

"A New Twist on an Old Story: Lawfare and the Mixing of Proportionalities"

Case Western Reserve Journal of International Law, Vol. 43, No. 3, 2011
Emory Public Law Research Paper No. 11-149

LAURIE R. BLANK, Emory University School of Law
Email: lblank

The claim that a just cause erases any wrongs committed in war is an old story, just like the opposite claim that an unjust cause renders all acts unlawful. International law has traditionally reinforced a strict separation between jus ad bellum – the law governing the resort to force – and jus in bello – the law governing the conduct of hostilities and protection of persons during conflict. Nonetheless, we see today a new twist on this old story that threatens the separation between jus ad bellum and jus in bello from the opposite perspective. In essence, there is an ever-louder claim that excessive civilian deaths under jus in bello proportionality render an entire military operation unjust under jus ad bellum.

Protection of civilians is a central purpose of international humanitarian law and media coverage of conflict and civilian deaths is critical to efforts to minimize human suffering during war. However, insurgent groups and terrorists exploit this greater focus on civilian casualties to their own advantage through tactics often termed lawfare, such as human shields, perfidy and other unlawful tactics. Not only do they seek greater protection for their fighters, but they also use the resulting civilian casualties as a tool of war. This article analyzes the growing use of alleged violations of jus in bello proportionality to make claims of disproportionate force under jus ad bellum. In doing so, it highlights the strategic and operational ramifications for combat operations and the impact on investigations and analyses of IHL compliance and accountability. Ultimately, this new twist on an old story has significant consequences for the application of IHL, for decisions to use force, and for the implementation of strategic, operational and tactical goals during conflict. Most of all, it places civilians in increasing danger because it encourages tactics and strategies that directly harm civilians.

"The Pentagon Papers Case and the Wikileaks Controversy: National Security and the First Amendment"

Wake Forest Journal of Law and Policy, 2011
GWU Legal Studies Research Paper No. 552
GWU Law School Public Law Research Paper No. 552

JEROME A. BARRON, George Washington University – Law School
Email: jbarron

This Essay focuses on two clashes between national security and the First Amendment – the Pentagon Papers case and the WikiLeaks controversy. The two cases are hardly exact parallels. In the Pentagon Papers case the government was seeking to enjoin publications, asking for the imposition of a prior restraint. In that context, the press received the benefit of the "heavy presumption" against prior restraints. In the WikiLeaks controversy, because the discussion centers on the possibility of a criminal prosecution against Julian Assange, there is no equivalent "heavy presumption" against such a prosecution. In each case, the actual leaker was arrested, but, in the Pentagon Papers case, the publishers were not prosecuted. Assange has not yet been the subject of a U.S. criminal prosecution, but it may happen.

The newspaper press is obviously an addressee of the First Amendment, but an issue remains as to whether a website such as WikiLeaks is part of that press. Furthermore, Assange and WikiLeaks seek to challenge the very idea and practice of government secrets altogether. Such a claim is unlikely to receive full First Amendment protection.

"Targeted Killing Court: Why the United States Needs to Adopt International Legal Standards for Targeted Killings and How to Do So in a Domestic Court"

MICHAEL ROBERT EPSTEIN, Journal of International Law
Email: epstei22

In light of the fact that the Obama Administration appears committed to continuing and expanding the use of drones and targeted killing as a primary counter-terrorism method, addressing both domestic and international concerns about the legality of our drone use is no simple task. Much has been written on the topic, and various definitions and interpretations of international law have been proposed; in order to address all of these concerns simultaneously while balancing the obvious reality that drone strikes will not stop anytime soon, I propose that a domestic judicial mechanism is required. Part I of this paper demonstrates the continuing development and use of drone technology, and the international criticism and debate it has sparked. Part II of this paper examines the history of targeted killings and drone strikes. Part III of this paper examines the past and current U.S. policy regarding targeted killings and drone strikes, including justifications under domestic and international law. Part IV analyzes international legal standards, and attempts to grasp “what law applies” in the gray area of counter-terrorism targeted killings. Part V compares Israel’s history and policy of targeted killings and drone use, and analyzes the first prominent judicial opinion regarding the use of targeted killings as a counter-terrorism tool. Part VI proposes a domestic U.S. Court designed to deal with the international and domestic concerns about the questionable legality of targeted killings.

The proposed court is intended to address the basic problem confronting the continued use of drones: how do we protect our citizens and ensure our national security under international law against threats posed by non-state actors who follow no laws or rules, while simultaneously retaining our credibility abroad and at home?


nationalsecuritylaw United States v. Nashiri (Mil. Com. Apr. 20, 2011) (charges sworn)

April 20, 2011

* United States v. Nashiri (Mil. Com. Apr. 20, 2011) (charges sworn)

I do not have a copy of the sworn charges, but the details from the press release today appear below. For comparison’s sake, you can find the earlier iteration of charges and motion papers relating to Nashiri here. At first glance, the major difference appears to be that the earlier material support charge has been dropped, and charges relating to attacks on civilians (presumably focused on the attack on the MV Limburg in 2002) have been added. The press release states:

The Department of Defense announced today that military commissions prosecutors have sworn charges against Abd al Rahim Hussayn Muhammad al Nashiri of Saudi Arabia.

The chief prosecutor has recommended that the charges against Nashiri be referred as capital. Capital charges may only be pursued with the convening authority’s approval.

The charges allege that Nashiri was in charge of the planning and preparation for the attack on USS Cole (DDG 67) in the Port of Aden, Yemen, on Oct. 12, 2000. The attack killed 17 sailors, wounded 40 sailors, and severely damaged the ship by blowing a 30-foot by 30-foot hole in her side. The charges also allege that Nashiri was in charge of planning and preparation for an attempted attack on USS The Sullivans (DDG 68) as that ship refueled in the Port of Aden on Jan. 3, 2000.

It is further alleged that Nashiri was in charge of the planning and preparation for an attack on the French civilian oil tanker MV Limburg in the Gulf of Aden on Oct. 6, 2002. This attack resulted in the death of one crewmember and the release of approximately 90,000 barrels of oil into the gulf.

The charges allege that Nashiri committed offenses that are chargeable under the Military Commissions Act of 2009, 10 U.S.C. §§ 948a, et seq. Under that act, he may be convicted only if his guilt is proven beyond a reasonable doubt. Specifically, Nashiri is charged with the following substantive offenses: terrorism; attacking civilians; attacking civilian objects; intentionally causing serious bodily injury; hazarding a vessel; using treachery or perfidy; murder in violation of the law of war; attempted murder in violation of the law of war; conspiracy to commit terrorism and murder in violation of the law of war; destruction of property in violation of the law of war; and attempted destruction of property in violation of the law of war.

These charges go beyond what is necessary to establish that Nashiri may be lawfully detained under the 2001 Authorization for Use of Military Force, as informed by the laws of war — an issue that each Guantanamo detainee may challenge in a habeas petition in federal court.

In accordance with the Military Commissions Act of 2009, the sworn charges will be forwarded to the Convening Authority, Bruce MacDonald. The convening authority will make an independent determination as to whether to refer some, all, or none of the charges for trial by military commission. If the convening authority decides to refer the case to trial, he will designate commission panel members (jurors). The chief trial judge of the Military Commissions Trial Judiciary would then assign a military judge to the case.


nationalsecuritylaw Upcoming Event: “Non-International Armed Conflict in the 21st Century” (June 21-23, 2011), Naval War College (International Law Department Annual Conference)

April 20, 2011

* Upcoming Event: "Non-International Armed Conflict in the 21st Century" (June 21-23, 2011), Naval War College (International Law Department Annual Conference)

Every summer the International Law Department of the Naval War College puts on a don’t-miss IHL conference. This year’s event will focus on IHL in the context of non-international armed conflict, and the lineup of topics and speakers is most impressive. All the logistics and other details are in the three attached documents.

Conference Advertisement 2011.pdf

ILD Conference Admin Information 2011.pdf

ANNUAL CONFERENCE AGENDA FOR WEBSITE 18 APR 11.pdf