* forthcoming scholarship (and greetings to all on Memorial Day)
"Terrorism Prosecutions in Federal Court: Exceptions to Constitutional Evidence Rules and the Development of a Cabined Exception for Coerced Confessions"
NORMAN ABRAMS, UCLA Law School
The issue of where to prosecute Guantanamo detainees, as well as future terrorism defendants has been a topic of spirited public debate. Generally, the choice has been seen primarily as between three options, civilian federal courts, military commissions, or a new national security court, not-yet created. A fourth alternative (perhaps some would characterize it as a variation on the civilian court option) would involve utilization of some special rules in federal court criminal terrorism trials, that is, exceptions to usually-applicable constitutional rules of evidence based on terrorism-related elements in the case. To illustrate the approach, a series of such exceptions, some already recognized under existing law and some proposed herein, are addressed in this paper.
In the first part, four existing "exceptions" to constitutional rules of evidentiary admissibility are examined – relating to fourth amendment protections, compulsory process, confrontation and Miranda. The first two of these exceptions were originally developed in connection with terrorism investigations; the second two were first formulated in situations involving exigent circumstances-public safety concerns. The paper proposes that the latter two public safety exceptions be extended to apply in terrorism investigations. (Recently-made-public FBI guidelines have been promulgated which adapt the New York v. Quarles/Miranda public safety exception for use in interrogating suspected terrorists.) The paper identifies elements common to all four exceptions and identifies how these common elements are applied differently in connection with each of the exceptions, because of differences in the applicable constitutional doctrines.
The second part of the paper, building on the first part and the existing and proposed terrorism investigation exceptions, examines a proposal for creating an entirely new exception relating to a fifth constitutional admissibility doctrine, one involving a hallowed area of constitutional criminal procedure – coerced confessions. A cabined exception is proposed, that is, one which, in exigent circumstances involving terrorism, would apply an exception and allow government agents to utilize non-extreme police interrogation methods, the use of which, under existing supreme court precedents, would ordinarily have been ruled to violate the Constitution. Arguments and issues suggested by this proposal are examined in depth. A preliminary summary of the terms in which this exception might be cast is also included. Finally, whether the exception should be created by legislation or judicial interpretation is addressed.
Adoption of the several proposals discussed here would, of course, affect the conduct of future terrorism trials in the federal courts as well as the interrogation practices of the FBI and other government agencies. Adding to civilian court criminal trial process, specific exceptions, with the goal of making it somewhat easier to obtain intelligence in serious terrorism cases and introduce into evidence statements obtained from such interrogations, would reduce some of the perceived process advantages that the options of military commission trials and a national security court, as proposed, have over the federal civilian court alternative. It could thus significantly influence the terms of the debate over what is the best way to proceed in prosecuting terrorists.
“ Obama’s Military Commitment in Libya”
Lou Fisher, Constitution Project
Presidents have some discretion to use military force without advance congressional authorization, including repelling sudden attacks and rescuing American citizens. None of those justifications apply to Libya. America was not threatened or attacked by Libya. President Obama has called the military operation a humanitarian intervention that serves the national interest. Launching hundreds of Tomahawk missiles and ordering air strikes against Libyan ground forces, for the purpose of helping rebels overthrow Col. Qaddafi, constitutes war. Under the U.S. Constitution, there is only one source for authorizing war. It is not the Security Council or NATO. It is Congress.
To restore constitutional government, Congress and the public must confront Presidents who commit troops to foreign wars without seeking legislative authority. No action by a President would more warrant impeachment and removal than usurping the war power from Congress and undermining representative government and the system of checks and balances. Members of Congress need to understand their institutional duties and discharge them. They take an oath to support and defend the Constitution, not the President.
"Information Warfare and Civilian Populations: How the Law of War Addresses a Fear of the Unknown"
Goettingen Journal of International Law, Vol. 3, No. 1, p. 373, 2011
LUCIAN E. DERVAN, Southern Illinois University School of Law
Imagine a civilian communications system is being temporarily relied upon by an opposing military force for vital operations. If one launches a computer network attack against the communications system, the operation may disable the opposing force’s ability to function adequately and, as a result, prompt their surrender. The alternative course of action is to launch a traditional kinetic weapons attack in the hopes of inflicting enough casualties on the troops to induce surrender. Given these options, the law of war would encourage the utilization of the computer network attack because it would result in less unnecessary suffering. But is the same true if we are unsure of the collateral consequences of the computer network attack on a large civilian population that also relies on this communications system? For instance, because civilians use the same communications system to gather critical information, disabling the system might result in rioting, civil disorder, serious injuries, and deaths. Further, civilians may be unable to call for help, seek out medical assistance, or locate emergency response centers. Given these unknown yet potentially severe collateral consequences to civilians, it becomes less clear that a proportionality analysis under the law of war would favor the computer network attack over the traditional kinetic operation. In this article, Professor Lucian E. Dervan examines the application of the law of war to information operations and analyses the role of the Geneva Convention’s utilitarian goals in determining the validity of computer network attacks against dual-use civilian objectives.
"Levée En Masse – A Nineteenth Century Concept in a Twenty-First Century World"
Sydney Law School Research Paper No. 11/31
EMILY CRAWFORD, University of Sydney – Faculty of Law
Levée en masse – the spontaneous uprising of the civilian population against an invading force – has long been a part of the modern law of armed conflict with regards to determining who may legitimately participate in armed conflict. The concept originated during the French Revolution, and was internationalized with its inclusion in the rules of armed conflict adopted by the Union Army during the American Civil War. Levée en masse continued to be included in the major international law of armed conflict documents from that time on, including The Hague Regulations of 1907 and the Geneva Conventions of 1949. However, since that time, there have been few, if any, instances of levée en masse. This article examines the historical and legal development of the concept of levée en masse, charting its evolution from a general and sustained call to arms to the civilian population to the more strict 19th and 20th century legal categorization of civilians attempting to fend off an invading force. This article also examines the few instances of levee en masse in State practice, and, in doing so, assesses whether the concept retains any utility in 21st century armed conflict.