nationalsecuritylaw more forthcoming scholarship

May 5, 2011

* more forthcoming scholarship

This one is particularly timely:

"Targeted Killing and Drone Warfare: How We Came to Debate Whether There is a ‘Legal Geography of War’"

Hoover Institute Online Volume Essay – Future Challenges, Forthcoming

KENNETH ANDERSON, Washington College of Law, American University, Stanford University – The Hoover Institution on War, Revolution and Peace, Brookings Institution – Governance Studies
Email: kanders

This brief policy essay examines the evolution of the argument around the proposition that there is a “legal geography of war.” By that term is meant whether the law of war applies only within certain geographically defined areas. It does so in the context of the war on terror and counterterrorism, and specifically in the debates over targeted killing and armed drone warfare.

The essay is a non-technical policy essay that, in final form, will be part of an online volume published by the Hoover Institution Task Force on National Security and Law. Its purpose is not to offer a formal legal argument on the proposition of a “legal geography of war,” but instead to reflect more discursively on how the communities of international law, policy, diplomatic, laws of war, military, intelligence, nongovernmental organizations, and international advocacy have debated this since 9/11. It argues that the Bush administration’s assertion of a global war on terror and its claims of the legal incidents of war on a worldwide basis caused a backlash among its critics, toward geographical constraints on war as formal legal criteria. This was a shift away from the traditional legal standard that war takes place, and the law of war governs, where(ever) there is “conduct of hostilities.”

Drones and targeted killing, insofar as they are asserted within the law of war, particularly strain the legal framework. However, as the Obama administration has moved away from the global war on terror as a means to widen the application of the law of war beyond the conduct of hostilities, legal views appear to be converging once again on the traditional “conduct of hostilities” standard. The essay concludes with a brief, speculative post-script on the meaning of the deployment of armed drones to the Libyan conflict, and how that deployment seems peculiarly to have shifted the perceived acceptability of drone warfare in a way that was not quite so evident when the issue was not humanitarian war in Libya, but the US’s wars of national security in Afghanistan and Pakistan.

nationalsecuritylaw forthcoming scholarship

May 5, 2011

* forthcoming scholarship

Two particularly worthwhile papers:

National Security Federalism in the Age of Terror

64 Stanford Law Review (forthcoming 2011)

Matthew C. Waxman (Columbia)

National security law scholarship tends to focus on the balancing of security and liberty, and the overwhelming bulk of that scholarship is about such balancing on the horizontal axis among branches of the federal level. This Article challenges that standard focus by supplementing it with an account of the vertical axis and the emergent, post-9/11 role of state and local government in American national security law and policy. It argues that a federalism frame, which emphasizes vertical intergovernmental arrangements for promoting and mediating policy values over the long term, helps in understanding the cooperation and tension between the federal and local governments with respect to counter-terrorism and national security intelligence, and that it yields insights to guide reform of those relationships. It emphasizes two important values that have been neglected in the sparse scholarship on local government and national security functions: (1) accountability and the way vertical intergovernmental arrangements enhance or degrade it; and (2) efficiency and the way those arrangements promote public policy effectiveness. This Article reveals important policy benefits of shared federal-local national security functions, especially if terrorism threats evolve to include a greater domestic component.

“Detention Operations in Contemporary Conflits: Four Challenges for the Geneva Conventions and Other Existing Law” (see the attached pdf)

105 American Journal of International Law 201 (2011)

Vijay M. Padmanabhan (Cardozo, Vanderbilt)
John Bellinger III (Arnold & Porter, Council on Foreign Relations)

Since the 9/11 attacks, States have been scrambling to find answers to difficult questions surrounding the detention of members of non-State groups. Four legal questions in particular have proven vexing to States: (1) who is subject to detention; (2) what process must the State provide to those detained; (3) when does the right of the State to detain terminate; and (4) what legal obligations do States have in connection with repatriating detainees at the end of the conflict?

Nearly nine years since 9/11 two factors have prevented development of the law on these questions. First, some States, international organizations, and NGOs continue to insist that existing law adequately answers these questions. Second, where there is agreement that new law is needed, disagreement about how to develop the law has limited progress.

This Article, by two former State Department lawyers, crystallizes the existing state of law to create the foundation for development of new law on these important questions. The first objective is to demonstrate that existing law inadequately answers the questions posed. The Article begins by demonstrating why the law of non-international armed conflict, the generally applicable legal regime for armed conflicts between States and non-State groups, does not provide clear answers to these questions. The Article then explains why other legal regimes — international humanitarian law for international armed conflict, municipal law and international human rights law — also fail to provide adequate answers at present.

The Article’s second objective is to identify areas of convergence on these four questions that may form the basis for future legal development. The resistance of many to admitting further legal development is necessary is the legitimate fear that States will abuse legal uncertainty to engage in policies inconsistent with the spirit of international law. Immediate work on development of new law may ameliorate these fears. While a new treaty regime may be the ideal vehicle for development of new law, the Article recognizes that agreement on a new treaty is unlikely, and proposes an agreement on common principles by like-minded States as an interim step.

Bellinger-Padmanabhan April 2011.pdf