nationalsecuritylaw al-Hajj v. Obama (D.D.C. May 23, 2011) (largely granting motion to strike detainee interrogation statements from gvt’s return in GTMO habeas proceeding)

June 8, 2011

* al-Hajj v. Obama (D.D.C. May 23, 2011) (largely granting motion to strike detainee interrogation statements from gvt’s return in GTMO habeas proceeding)

The opinion is here, and my detailed description of the holding is here. The opinion will be of interest to those who want to understand how the GTMO habeas process deals with allegations that inculpatory statements were obtained by coercion or under the influence of past coercion.


nationalsecuritylaw forthcoming scholarship

June 8, 2011

* forthcoming scholarship

"The Mexican Drug War: The Case for a Non-International Armed Conflict Classification"

Fordham International Law Journal, Vol. 34, p. 1042, 2011

CARINA BERGAL, affiliation not provided to SSRN

Since Felipe Calderon’s ascension to the Mexican presidency in 2006, approximately 30,000 people have died as a result of the protracted and gruesome drug wars that have plagued the country for years. Both the Mexican military and police at all levels have been dispatched to quell the violence, and various institutional reforms have been put into place to facilitate an end to the drug war. This Note argues that the Mexican drug war should not be considered a mere domestic insurgency and should instead be classified as a non-international armed conflict (“NIAC”), subject to the properly affiliated laws of war that govern such classification. Through a comprehensive review of the various international legal standards, decisions and authoritative guidelines applicable to the current conflict in Mexico, the case for a NIAC classification is laid out.


Risk Taking and Force Protection

David J. Luban (Georgetown Univ. – Law)

Reading Walzer, Itzhak Benbaji & Naomi Sussman eds., forthcoming)

This paper addresses two questions about the morality of warfare: (1) how much risk must soldiers take to minimize unintended civilian casualties caused by their own actions (“collateral damage”), and (2) whether it is the same for the enemy’s civilians as for one’s own.

The questions take on special importance in warfare where one side is able to attack the other side from a safe distance, but at the cost of civilian lives, while safeguarding civilians may require soldiers to take precautions that expose them to greater risk. In a well-known article, Asa Kasher and Amos Yadlin argue that while soldiers must rank the protection of their own civilians above their own protection, they must rank their own protection above that of enemy civilians. Avishai Margalit and Michael Walzer responded that the only morally relevant distinction is between combatants and non-combatants, not the identity of the non-combatants. The present paper concludes that Margalit and Walzer are correct. Although soldiers may take extra risks on behalf of their own civilians, the minimally acceptable risk for enemy civilians is the same as the minimally acceptable risk for their own.

In response to the first question, the paper emphasizes two chief points. First is the equal worth of military and civilian lives, which implies a weak form of “risk egalitarianism”: even if morality often permits people to transfer risk from themselves to others, transferring large risks to others in order to spare oneself from smaller risks is morally wrong, because indirectly it treats oneself as more valuable than the other. Second, I explore the possibility that soldiers belong to a profession in which honor may require them to take risks for civilians. This is particularly true when the risks to civilians come from the soldiers’ own violence.

The second question is whether soldiers’ special obligation to protect their own people (not other people) creates a higher minimum standard of care for their own people (and not other people). I answer no, because the special obligation is to protect their people from enemy violence, while the dilemma is whether to protect civilians from the soldiers’ own violence. The responsibility to protect the innocent from violence of one’s own making is a universal, not a special, obligation. Thus, in both questions 1 and 2, the fact that soldiers themselves create the violence that endangers civilians plays a crucial role in the answers.

The concluding sections address two crucial loose ends. First is the question of whether soldiers might in fact be more valuable than civilians (including their own civilians) because they are not only human beings, but also “military assets.” The paper answers no, because this way of thinking involves illegitimate double counting of the soldier’s value, coupled with a refusal to double count the value of anyone else. Second is the related question of whether minimizing military casualties might turn out to be a military necessity because the civilian population is deeply casualty-averse, and the war effort requires their political support. Again the answer is no: otherwise, the less will to fight a country has, the less moral and legal obligation it has to fight well.

"Towards a Synthesis Between Islamic and Western Jus in Bello"

JACOB TURNER, Harvard University, University of Oxford
Email: jturner

In the body of international humanitarian law (‘IHL’), there is a lacuna regarding the status of combatants engaged in asymmetric warfare. This has arisen, at least in part, out of a failure to establish a satisfactory distinction between civilians and combatants reflecting the nature of such conflicts and commanding the respect of parties to them.

The recent killing of Osama Bin Laden by US Special Forces Operatives has provided publicity to the debates regarding the legal status of irregular combatants. Some have claimed that Bin Laden ought to have been captured alive and tried in a court. The US administration has argued that Bin Laden’s killing was justified as part of an ongoing war. This paper suggests that at least some of the legal and moral uncertainty surrounding Bin Laden’s death, as well as the status of many other such belligerents, stems from a lack of clarity in IHL.

It is imperative that new provisions of IHL be developed to accommodate the dynamics of modern warfare. In order that these may attain the requisite level of peremptory force to bind both state and non-state actors, new element of legitimacy must also be secured.

This paper suggests that this gap in IHL be solved by recourse to a combination or synthesis of norms of Islamic with traditional sources of Western law. Perhaps contrary to popular belief, many of the tactics commonly employed by modern terrorists are contrary to Islamic law. Given that the participants in much modern warfare operate on a religious, rather than a nationally-motivated ideological agenda, it seems fitting that this apparent Clash of Civilisations be moderated by a solution which draws on the legal doctrines of both groups, rather than just traditional Western Just War theory.

Clinton, Kosovo, and the Final Destruction of the War Powers Resolution

Geoffrey S. Corn (South Texas College of Law)
William & Mary Law Review, Vol. 42, p. 1149, 2001

The United States air campaign to compel Serbia to halt military ethnic cleansing in Kosovo was the first combat operation conducted for more than sixty days without express congressional authorization. The decision by President Clinton to commit the armed forces of the United States to combat action as part of the NATO led campaign without seeking congressional authorization triggered a judicial challenge by a number of legislators led by Representative Tom Campbell of California. Representative Campbell brought the challenge based on his assertion that the President was acting in direct violation of both the Constitution and the War Powers Resolution. Unlike similar challenges to prior presidential military commitments, the duration of the combat operations against Serbia precluded any implied sixty day clock theory of compliance with the Resolution. The challenge was ultimately dismissed on justiciability grounds by the United States Court of Appeals for the District of Columbia. This article analyzes the nature of the military operations and the basis for the dismissal, and asserts that the true effect of the court’s decision was to effectively nullify the significance of the War Powers Resolution as a barrier to presidential war making initiatives. In so doing, the court confirmed the continuing validity of longstanding separation of power jurisprudence related to war making decisions.

"War Powers Irresolution: The Obama Administration and the Libyan Intervention"

Engage, 2011
U of St. Thomas Legal Studies Research Paper No. 11-17

ROBERT J. DELAHUNTY, University of St. Thomas School of Law (Minnesota)
Email: RJDELAHUNTY

The US military intervention in Libya, now in its third month, has brought two fundamental and recurrent constitutional questions to the fore. The first is whether the President can initiate a war, admittedly not in national self-defense or for the protection of US persons or property abroad, with prior approval from Congress. The second is whether the provisions of the War Powers Resolution that require disengagement if the President has not obtained congressional sanction within two months of beginning such a war are constitutional.

"Sunset Clauses and Counterterrorism Legislation"

JOHN IP, University of Auckland – Faculty of Law
Email: j.ip

This article examines “sunset clauses”, legal provisions that provide for the expiry of a law or part of a law at a later date. Sunset clauses have often featured in post-9/11 counterterrorism legislation, and are commonly considered to be a safeguard against panicked and ill-conceived legislation. The purpose of this article is to evaluate whether this claim is borne out by experience.

The article sketches a brief history of the use of sunset clauses in general and in the specific context of the counterterrorism legislation of the United States, the United Kingdom and Canada. It then considers whether sunset clauses are substantively or procedurally effective by looking at whether they actually led to the expiry of certain legislative provisions or meaningful legislative reconsideration of those provisions. The article contends that the record of sunset clauses is mixed, but that sunset clauses, if appropriately drafted and tied to other accountability mechanisms, still have value.

"Preventive Detention, Character Evidence, and the New Criminal Law"

Utah Law Review, Vol. 2010, No. 3, 2010
William Mitchell Legal Studies Research Paper No. 2011-03

TED SAMPSELL-JONES, William Mitchell College of Law
Email: ted.sampsell-jones

A new criminal law has emerged in the last quarter century. The dominant goal of the new criminal law is preventive detention-incarceration to incapacitate dangerous persons. The emergence of the new criminal law has remade both sentencing law and definitions of crimes themselves. The new criminal law has also begun to remake the law of evidence. As incapacitation has become an accepted goal of criminal punishment, the rationale of the character rule has become less compelling, and the rule itself has begun to wane in criminal practice.

These changes have been subtle, but they have also been both radical and fairly rapid. There is no indication that the law will reverse course. Indeed, the law’s response to the threat of terrorism has only accelerated the move toward the new criminal law. In coming years, the Supreme Court will be forced to address a variety of difficult constitutional questions that the new criminal law presents.

Ironically, the safest solution may be to embrace preventive detention as an accepted function of the criminal law. Doing so would alter the Supreme Court doctrines which distinguish the civil from the criminal-doctrines that limit the reach of the Bill of Rights. The procedural protections guaranteed by the Bill of Rights should be extended to more citizens faced with incarceration regardless of whether the purpose of incarceration is incapacitation rather than punishment or deterrence. As the new criminal law remakes the American justice system, the Court must recognize that preventive detention is now a core function of the criminal law. That recognition will have the counter-intuitive effect of expanding the constitutional protections given to citizens facing imprisonment.

"’Leading from Behind’: The Responsibility to Protect, the Obama Doctrine, and Humanitarian Intervention After Libya"

Ethics & International Affairs, Forthcoming
NYU School of Law, Public Law Research Paper No. 11-35

SIMON CHESTERMAN, National University of Singapore – Faculty of Law, New York University – School of Law, Singapore Programme
Email: chesterman

Humanitarian intervention has always been more popular in theory than in practice. In the face of unspeakable acts, the desire to do something, anything, is understandable. States have tended to be reluctant to act on such desires, however, leading to the present situation in which there are scores of books and countless articles articulating the contours of a right – or even an obligation – of humanitarian intervention, while the number of cases that might be cited as models of what is being advocated can be counted on one hand.

So is Libya such a case? It depends on why one thinks that precedent is important. From an international legal perspective, debates have tended to focus on whether one or more states have the right to intervene in another for human protection purposes. From the standpoint of international relations and domestic politics, the question is whether states have the will to intervene. From a military angle, a key dilemma is whether states have the ability to intervene effectively. This essay considers these three issues in turn. The legal significance of Libya is minimal, though the response does show how the politics of humanitarian intervention have shifted to the point where it is harder to do nothing in the face of atrocities. At the same time, however, military action to the end of May 2011 suggested a continuing disjunction between ends and means.