nationalsecuritylaw audio from “Moving Targets: Issues at the Intersection of National Security and American Criminal Law” (Georgetown, Apr. 12, 2011)

April 18, 2011

* audio from "Moving Targets: Issues at the Intersection of National Security and American Criminal Law" (Georgetown, Apr. 12, 2011)

A webcast of the event is available here.

"Moving Targets: Issues at the Intersection of National Security and American Criminal Law.

On April 12, 2011, The Georgetown Center on National Security and the Law and The American Criminal Law Review co-hosted an event entitled "Moving Targets: Issues at the Intersection of National Security and American Criminal Law.

The first panel was entitled "Where One Ends and the Other Begins: Finding the Boundaries of Criminal Law and National Security on the issue of Military Commission" and featured the following distinguished panelists:

Marty Lederman Associate Professor of Law, Georgetown University Law Center; Former Deputy Assistant Attorney General at the Department of Justice’s Office of Legal Counsel

Matthew OlsenGeneral Counsel for the National Security Agency

Aziz HuqAssistant Professor of Law, University of Chicago Law School

Laura Donohue (moderator) • Associate Professor of Law, Georgetown University Law Center; Acting Director of the Georgetown Center on National Security and the Law

The second panel was entitled "The Role of Domestic Unmanned Aerial Vehicles in Border Surveillance" and featured the following distinguished panelists:

Julie O’Sullivan • Professor of Law, Georgetown University Law Center

Abbe Smith • Professor of Law, Georgetown University Law Center;Director, Criminal Defense and Prisoner Advocacy Clinic

John Stanton • Executive Director, National Air Security Operations, Customs and Border Protection, Department of Homeland Security

James Zirkle • Adjunct Professor of Law, Georgetown University Law Center; Former Associate General Counsel, Central Intelligence Agency

Stephen Vladeck (moderator) • Professor of Law, American University Washington College of Law

nationalsecuritylaw a final round in the Cooper – Williamson/Painter Exchange re Ex-Detainee Lawyers

April 18, 2011

* A final round in the Cooper – Williamson/Painter Exchange re Ex-Detainee Lawyers and Ethics Questions

Please see attached.

Sur-rebuttal to Cooper’s sur-reply.pdf

Cooper March 24 sur-reply.pdf

nationalsecuritylaw Kiyemba v. Obama (S.Ct. Apr. 18, 2011) (cert. denied)

April 18, 2011

* Kiyemba v. Obama (S.Ct. Apr. 18, 2011) (cert. denied)

The Supreme Court today denied cert in Kiyemba, the long-running litigation involving the remaining Uighur detainees at GTMO. The D.C. Circuit had held that courts lack authority to compel the government to release these individuals into the United States. Justice Breyer, joined by Justices Kennedy, Ginsburg, and Sotomayor, issued a “statement … respecting the denial” which culminated in the following statement:

In my view, these offers [i.e., two prior offers of resettlement], the lack of any meaningful challenge as to their appropriateness, and the Government’s uncontested commitment to continue to work to resettle petitioners transform petitioners’ claim. Under present circumstances, I see no Government-imposed obstacle to petitioners’ timely release and appropriate resettlement. Accordingly, I join in the Court’s denial of certiorari. Should circumstances materially change, however, petitioners may of course raise their original issue (or related issues) again in the lower courts and in this Court.

nationalsecuritylaw scholarship and commentary from the Harvard National Security Journal

April 18, 2011

* scholarship and commentary from the Harvard National Security Journal

The Harvard National Security Journal has recently posted a lot of interesting papers, including:

Steven G. Bradbury, The Developing Legal Frameworks for Defensive and Offensive Cyber Operations

[From the introduction to the speech] What I’d like to do today is to sketch out the basic legal framework that I see developing to govern the cyber operations of the federal

government. I want to talk, first, about the legal framework for defensive cybersecurity activities. Then I’ll address legal authorities potentially applicable to offensive cyber operations, including cyberwarfare. Lastly, I’ll say a word about possible responses to WikiLeaks.

Michael J. Glennon, The Cost of ‘Empty Words’: A Comment on the Justice Department’s Libya Opinion

[From the introduction] The April 1, 2011 opinion of the Justice Department’s Office of Legal Counsel (OLC), entitled “Authority to Use Military Force in Libya,” presents three main arguments in seeking to justify the constitutionality of the U.S. use of force against Libya: (1) the President has a “broad constitutional power” to order the use of force without congressional approval, particularly when the use of force isn’t really a war; (2) the existence of a United Nations Security Council resolution expands that power because the President has a responsibility to preserve the Council’s credibility and to ensure that its edicts do not turn out to be “empty words”; and (3) in any event, Congress has allowed the President to undertake this action through the War Powers Resolution, which permits him to use force for up to 60 days without specific, advance approval.

I proceed to suggest that none of these claims is convincing and I conclude with some thoughts about OLC’s concern about empty words.

Philip B. Heymann, Detention

[From the introduction] In a peculiar way, the still unresolved issues of seizure and detention of those suspected of alliances with terrorist groups and causes raise a set of fundamental jurisprudential questions.

First, international terrorism neither fits neatly into the practices and constraints of ordinary law enforcement nor does it justify the powers of a nation at war with a mighty foreign power. So don’t we need new law here and, if so, what should be the range of activities to which it applies; and must it not be international to serve our needs?

Second, developing new international law would take a decade or more. In the meantime, which body of law should the United States apply to guarantee minimum standards of accuracy, fairness, and humanity at the same time as adequate security? Or would we be legally justified to choose to satisfy either, depending on the situation?

Third, if the literal language of the protections of the law of war or the law of crime — each having been written with a quite different situation in mind — doesn’t meet these multiple needs for security, accuracy and fairness, does it at least make sense to insist that the obvious purposes of common protective provisions be honored during this interim period? If so, how would that work?

These questions, generally ignored, lie behind this paper.

David D. Clark & Susan Landau, Untangling Attribution

[Abstract] As a result of increasing Internet insecurity — DDoS attacks, spam, cybercrime, and data theft — there have been calls for an Internet architecture that would link people to packets (the fundamental communications unit used in the Internet). The notion is that this technical “fix” would enable better investigations and thus deterrence of attacks. However, in the context in which the most serious national-security cybersecurity threat the US faces is data exfiltration from corporate and government sites by other jurisdictions, such a solution would be a mistake. Cyberattacks and cyberexploitations are more different than they are the same, and multi-jurisdictional, multi-stage attacks (in which machine A penetrates and “takes over” machine B) are the critical cybersecurity threat. Meanwhile IP addresses are more useful as a basis for various kinds of attribution than has been sometimes thought, and the occasions when attribution at the level of an individual person is useful are very limited. We consider how cyberexploitations and cyberattacks might be traced, and discuss how technical contributions can only be contemplated in the larger regulatory context of various legal jurisdictions.

nationalsecuritylaw forthcoming scholarship

April 18, 2011

* forthcoming scholarship

‘Efficiency’ Jus in Bello and ‘Efficiency’ Jus Ad Bellum in the Practice of Targeted Killing Through Drone Warfare?

Kenneth Anderson
Washington College of Law, American University; Stanford University – The Hoover Institution on War, Revolution and Peace; Brookings Institution – Governance Studies

A peculiar feature of the targeted killing using drone technology debate is that it appears to set up a tension between the two traditional categories of the law and ethics of war, jus in bello and jus ad bellum. The more targeted killing technologies allow more precise targeting and reducing collateral casualties and harm (jus in bello), and that moreover at less personal risk to the drone user’s forces, perhaps the less inhibition that party has in resorting to force (jus ad bellum).

A strong version of this claim says: The perverse effect of increasing the "efficiency" of jus in bello through targeted killing (reducing civilian harm and increasing military effectiveness) is to reduce the "efficiency" of jus ad bellum (making the resort to force "too easy"). Improvements in "jus in bello" conduct ironically makes it too easy, too unconstrained (by lack of personal risk to one’s forces because of drones and lowered civilian harm because of improved targerting) to resort to force. This paper evaluates this claim, and more broadly the idea that jus in bello proportionality and jus ad bellum resort to force can each have a form of "efficiency." It rejects the claim as incoherent, because the existence of "sides" in conflict results in incommensurable meanings of winning and losing in jus ad bellum, without which there cannot be an “optimal” level of the resort to force.

The conceptual claim depends upon highly fact specific assumptions about the practice of targeted killing and drone warfare today. The essay walks through a number of these assumptions in an informal way, drawing upon the author’s discussions with governmental and non-governmental actors, particularly on the question of civilian casualties, and ways in which some of the anxieties over targeted killing and drone technologies might not reflect current practices. These assumptions are ones that the reader might or might not accept, given that they are not corroborated and reflect interviews, informal, and off the record discussions that are far from conclusive. Even if the reader does not share the premises in fact, the essay invites accepting them for purposes of evaluating the ethical argument. The essay intertwines an abstract argument about "efficiency" in the ethics of war, and a practical part that discusses premises crucial to that abstract argument.

America’s Longest Held Prisoner of War: Lessons Learned from the Capture, Prosecution, and Extradition of General Manuel Noriega

Louisiana Law Review, Forthcoming

Geoffrey S. Corn
South Texas College of Law
Sharon Finegan
Loyola University New Orleans – School of Law

Noriega’s odd journey through the U.S. legal system provides insight into an issue that has been consistently avoided in connection with the current “war on terror”: the consequence of granting wartime captives prisoner of war status and its impact on the ability of the United States to use its criminal law system to hold such captives accountable for their pre-capture conduct. Ironically, Noriega’s saga also triggered a legal battle over the effect of a law enacted by Congress to provide for the trial by military courts of captured al Qaeda and Taliban personnel, the Military Commission Act of 2009. In what can only be considered the final ironic twist of fate for the General, his effort to fight extradition turned on the validity of the MCA’s provision limiting access to judicial remedies for a class enemies captured in a war radically different from the one in which Noriega was captured. Nonetheless, like so many other legal issues related to his status as a U.S. captive, the MCA nullified the last modicum of value Noriega sought to derive from his status as a Prisoner of War prevented him from invoking that status as a barrier to his extradition.

As America’s longest held Prisoner of War (POW), Noriega’s capture, detention, prosecution, and ultimate extradition provide many important lessons in the balance between the protection of POWs and the flexibility afforded to detaining States to address pre-capture misconduct committed by these captives. It is therefore somewhat ironic that in the post-September 11th debates over the relative merits of extending POW status to captured al Qaeda and Taliban personnel, so little attention has been paid to the plight of General Noriega. His ouster from power, capture, trial, conviction, twenty years of incarceration, and most recent efforts to block extradition offer a fascinating insight into the intersection of national security and law, both domestic and international. What was his status upon capture? If a POW, what was the scope of his lawful immunity, and what was his status upon conviction in a domestic criminal court? How did Congress criminalize his conduct in Panama? Did an invasion to bring him to justice implicate due process concerns? Would his extradition violate the Geneva Prisoner of War Convention, and if so, what remedy did the Convention provide for the General?

Through General Noriega’s journey, this article will survey each of these legal issues and the law relied on to resolve them. The authors offer this survey in order to highlight how Noriega’s POW status never really impeded the ability of the United States to address the misconduct it sought to sanction him for. Because the authority to prosecute wartime captives is as important today as it was when the U.S. took Noriega into custody, the authors believe the lesson of Noriega’s experience deserves greater attention, because in many ways it rebuts the flawed assumption that POW status and protection of the nation from individuals who commit pre-capture misconduct directed against the national security interests of the nation are somehow incompatible. Instead, General Noriega’s legal saga will offer insight into the viability of existing law to address the challenge of such captives, even in the context of the contemporary struggle against international terrorism. While the authors do not intend to suggest that these lessons mandate reconsideration of the status of captured al Qaeda and Taliban personnel, it does indicate the fallacy of asserting that extending POW status (or perhaps only combatant immunity) to such enemy belligerents will disable the ability of the nation to address their pre-capture misconduct.

Targeting, Command Judgment, and a Proposed Quantum of Proof Component: A Fourth Amendment Lesson in Contextual Reasonableness

Geoffrey S. Corn
South Texas College of Law

No decision by a military commander engaged in hostilities has more profound consequence than the decision to launch an attack. Pursuant to the law of armed conflict (LOAC), that decision must be based on the judgment that the object of attack – a person, place, or thing – qualifies as a lawful military objective. This judgment almost always sets in motion the application of deadly combat power, and routinely produces loss of life or grievous bodily injury, often times to individuals and property not the intended object of attack, but considered ‘collateral damage.’ In operational terms, this judgment determines whether the nominated target is lawful. This target legality judgment is made in a myriad of contexts, sometimes involving split second decisions by soldiers at the proverbial tip of the spear; sometimes involving complex and deliberate process at high levels of command; sometimes involving summarized process at those same levels of command to address time sensitive targeting requirements. In all of these contexts, the LOAC provides the test for ensuring target legality. This test is intended to ensures that the harmful consequences of armed conflict are confined as much as possible to the lawful objects of violence, thereby providing the primary (although not exclusive) barrier against producing unjustified injury to other persons, places, and things that are protected from being made the deliberate object of attack.

It is clear that the law requires that targeting judgments be reasonable under the circumstances prevailing at the time. What is less clear is the amount of combat information and/or intelligence required to render a judgment reasonable. Because the reasonableness of targeting judgments are and by their nature must be contextually dependent, it is almost inevitable that reasonableness cannot be assessed based on a unitary quantum component. Furthermore, because the LOAC establishes inverse presumptions of legality vis a vis combatants and civilians (and their respective property), a unitary quantum component of reasonableness would be inconsistent with the law itself. Thus, while the contextual nature of targeting and the weight of presumptions applicable to potential targets suggest an inherent variable quantum component, virtually nothing in the law or the scholarly treatment of the law of targeting addresses this component of reasonableness.

This article proposes a quantum of proof methodology to aid in the operational assessment of target reasonableness. In support of this proposal, the article will provide a comparative analysis of U.S. constitutional Fourth Amendment jurisprudence, focused specifically on the relationship between several distinct quanta standards for assessing reasonableness and the interests they were developed to balance. The article will then discuss the basic foundation of the law of targeting with a particular emphasis on the established presumptions. This will lead to an analysis of how different quantum standards established to define reasonableness in the U.S. Fourth Amendment context offer a logical starting point for providing a similar touchstone for assessing the reasonableness of targeting decisions in armed conflict.

A Square Peg in a Round Hole: Stretching Law of War Detention Too Far

Rutgers Law Review, Vol. 64, No. 1, 2011
Laurie R. Blank
Emory University School of Law

This article focuses specifically on the appropriateness of indefinite detention under the laws of war that the Obama Administration is establishing for certain detainees currently at Guantanamo, and possibly others in the future. In particular, this article argues that the indefinite detention regime ongoing and proposed for the future diverges in critical ways from traditional law of war detention.

Although additional process is a positive step, process alone cannot answer deeper questions about the lawfulness of an indefinite detention regime in general or the lawfulness of such detention for particular individuals. One important foundational question, therefore, is whether characterizing the detention of these forty-eight individuals – and likely others in the future – as “under the laws of war” is truly an accurate label. The law of war does indeed provide for detention without charge of both prisoners of war and civilians in certain circumstances; the question here is whether the indefinite detention currently at issue can truly be called “law of war” detention or whether it is a perversion of that concept, the proverbial square peg in a round hole.

This article highlights three problems with the current and proposed indefinite detention of terrorist suspects, problems that expose how this system stretches the traditional notion of law of war detention beyond its limits – problems of definition, problems of purpose and problems of posture. Problems of definition involve the geography of the battlefield and the temporal parameters of a conflict with terrorist groups. Problems of purpose occur because the nature of the current indefinite detention regime suggests that the detention is punitive in nature, even if not formally so, whereas law of war detention is traditionally protective in purpose and scope. Problems of posture exist because the indefinite detention regime is a system created in a reactive posture, one designed to meet a desired result rather than one developed proactively within an existing legal framework. While there is no doubt that new conflicts pose new questions and challenges, the failure to engage in foundational discussions about the nature of U.S. counter-terrorism goals and legal parameters has meant that the U.S. is continually operating from a reactive posture rather than on the basis of established criteria, standards and guidelines for future engagements. The end result: indefinite detention cannot rightly be termed “law of war detention” or detention “under the laws of war” without unduly stretching the fabric of traditional law of war detention too far.