nationalsecuritylaw more upcoming events: Chicago Federalist Society, “9/11 Tenth Anniversary Program” (9/15)

August 31, 2011
9/11 Tenth Anniversary Program:

Discussion, Debate, Reception,

and Book Signing

Sponsored by the Chicago Lawyers Chapter
See other Federalist Society events Here.
The Federalist Society
1015 18th Street, NW
Suite 425
Washington, DC 20036
In memory of the 10th Anniversary of Sept. 11, the Chicago Lawyers Chapter presents:

4:30pm Panel Discussion: Confronting Terror: 9/11 and the Future of American National Security

Join our distinguished panel to discuss this topic from a variety of viewpoints presented in the book, Confronting Terror, edited by John Yoo, Professor of Law at University of California, Berkeley and a leading initial architect of post-9/11 national security policy, and Dean Reuter, Vice President & Director of Practice Groups for the Federalist Society for Law and Public Policy.


Hon. Bob Barr, Former Congressman, 7th Dist. GA, 2008 Libertarian Candidate for President of the United States, and member of The Constitution Project’s Liberty and Security Committee

Arthur Herman, Visiting Scholar, American Enterprise Institute

Charles R. Kesler, Senior Fellow, Claremont Institute

Hon. Richard A. Posner, Judge, U.S. Court of Appeals for the 7th Circuit


Hon. Frank Easterbrook, Chief Judge of the Court of Appeals for the Seventh Circuit

5:30 – 6:30pm: Reception and Book Signing

6:30pm Debate: "Resolved: That the President’s War Powers are (Nearly) Absolute

Co-sponsored by The Jack Miller Center for Teaching American Founding Principles and History, the American Constitutional Society, The Constitution Project, DePaul University College of Law, and Ricochet.

To Propose: John Yoo — Professor of Law, University of California, Berkeley School of Law, and former Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice

To Oppose: Alberto Coll — Professor of Law, DePaul University College of Law, former Principal Deputy Secretary of Defense for Low Intensity Conflict and former Dean of Strategy, U.S. Naval War College
Moderator: James Warren

nationalsecuritylaw forthcoming scholarship

August 31, 2011

"Differential News Framing of Unmanned Aerial Drones: Efficient and Effective or Illegal and Inhumane?"

APSA 2011 Annual Meeting Paper

TIMOTHY JONES, Bellevue College, University of Washington
Email: tim.jones
PENELOPE SHEETS, affiliation not provided to SSRN
CHARLES ROWLING, University of Washington
Email: rowlingc

Over the past four years, the United States has significantly expanded its use of unmanned aerial vehicles, also called predator drones, to conduct intelligence-gathering and military-strike operations in remote regions of Afghanistan, Pakistan, and elsewhere. Experts are divided over this recent change in military strategy, with some defending the use of drones as a legal and efficient way to target terrorists, and others condemning it as a violation of international law that ends up frequently killing innocent civilians (Tapper, 2010; Bergen & Doherty, 2010; Ackerman, 2010). In this study, we propose an exploration of the differential framing of the drone issue in U.S. and foreign news coverage. Specifically, we content analyzed three leading English-language newspapers – The New York Times (United States), The Guardian (Britain) and Dawn (Pakistan). Consistent with previous scholarship (Jones & Sheets, 2009), we expected U.S. and foreign journalists to differ, systematically, in how they frame the drone policy. Given their social identity and institutional motivations, we believe American journalists will be more likely to frame the usage of drones in ways that protect American national identity – by avoiding mention of civilian deaths, and by highlighting the drones’ value in saving American lives, their legality under international law, and their effectiveness as a tool in the War on Terror. We believe foreign journalists, on the other hand, will not be constrained by the same institutional or social identity motivations; we, therefore, expect them to more regularly discuss civilian casualties, the technological limitations of drones, their illegality, and their ramifications for increased hostility toward the United States. We found data conforming to these patterns, which have important implications for global public opinion about the use of drones, as well as for the American public’s exposure to and understanding of the downsides of drone warfare as a policy.

"Stuxnet as Cyberwarfare: Applying the Law of War to the Virtual Battlefield"

Email: jrichardson

In the field of international humanitarian law, there are a number of questions about the conduct of warfare in the cyber domain. In some cases, answers can be gleaned from treaties and customary international law but in other instances, solutions are seemingly intractable, begging for solutions that may only be answered by technology itself. From a legal perspective, such oversimplifications trivialize humanitarian law as well as other legal constructs already struggling to address complex issues in the cyber realm.

It is within this context that this paper focuses on a recent event known as Stuxnet, a computer virus that infected and damaged a nuclear research facility in Natanz, Iran. Reflecting on this particular cyber attack, this paper addresses two IHL issues: Does the Stuxnet attack rise to the level of an armed attack within the meaning of international humanitarian law? If so, did it adhere to the two core principles of IHL, namely distinction and proportionality? This paper finds that the Stuxnet attack does in fact rise to the level of an armed attack within the meaning of IHL and adheres to the principles of distinction and proportionality.

‘Mexico’s “War on Drugs”: Real or Rhetorical Armed Conflict?’

Patrick Gallahue

24 Journal of International Law of Peace and Armed Conflict 39 (2011)

The author considers Mexico’s “drug war” to determine if the ongoing violence between authorities and drug cartels can be classified as an armed conflict, which would make the situation subject to international humanitarian law. Looking at several influential decisions that determined the existence of an armed conflict as well as a consideration of modern, so-called “anarchic” conflicts, the current crisis seems well suited for such a categorisation. However, classifying Mexico’s situation as an armed conflict would be inappropriate. Though sophisticated in some respects, these groups lack the organisation requirement and the violence unique to this crisis make this “drug war” a rhetorical war rather than a real armed conflict

"Can Counter-Terrorist Internment Ever Be Legitimate?"

Human Rights Quarterly, Vol. 33, No. 1, pp. 593-619, 2011

FIONA DE LONDRAS, University College Dublin-School of Law
Email: fiona.delondras

Counter-terrorist internment is generally rejected as illegitimate from a human rights perspective. However, while the practice of counter-terrorist internment has long resulted in the infringement of human rights, this article argues that the concept of internment holds some potential for legitimacy. This potential can only be realized if four legitimacy factors are fully embraced and complied with: public justificatory deliberation, non-discrimination, meaningful review, and effective temporal limitation. Outlining these factors, this article imagines a system of internment that is legitimate from a human rights perspective and can serve both real and pressing security needs, and rights-based legitimacy needs.

"Cosmopolitan Liberty in the Age of Terrorism"

INTERNATIONAL AND COMPARATIVE CRIMINAL JUSTICE AND URBAN GOVERNANCE, A. Crawford, ed., pp. 413-438, Cambridge University Press, 2011

CLIVE WALKER, University of Leeds – Centre for Criminal Justice Studies (CCJS)
Email: law6cw

Though of ancient origin, the concept of cosmopolitanism remains salient, not least within contemporary rights discourse. Its institutional implications promulgate the ideal of a common community which can be viewed as reflected in the emergence of post-1945 federations of nations which sponsor international human rights and humanitarian laws.

Yet, can these concepts of cosmopolitanism hold fast in the face of contemporary terrorism? Jihadi movements like Al-Qa’ida have been criticised as ‘counter-cosmopolitans’. In turn, states are motivated by terrorism to raise the drawbridge on cosmopolitan comity and to adopt exceptionalism in foreign affairs and irreconcilable forms of illiberal nationalism at home. The counter-terrorism world order thus appears to contradict the ‘Perpetual Peace’ grounded in universal hospitality as outlined by Kant (1795) and draws closer to an inhospitable ‘war all the time’.

Despite this unpromising landscape, a ‘weak’ and ‘moderate’ version of cosmopolitanism is adopted in this chapter as championing the notion of a common shared morality which can apply regardless of nationality and citizenship even in the face of terrorism by one’s mortal enemy. The version is ‘weak’ in that it is not claimed that cosmopolitan liberty delivers equal liberty without borders, but it does demand an equation of liberty for all within borders and at a sufficient level of enjoyment which satisfies international standards. The version is ‘moderate’ for it is not claimed that cosmopolitanism is the sole normative value of relevance. For present purposes, the core of the applicable morality within cosmopolitanism will remain the universality of human rights. However, the point of this chapter’s regard for cosmopolitanism beyond human rights doctrine is to draw out the force of its restraint within a jurisdiction upon state-centric security and also the force of its persuasion to extend mutual respect beyond jurisdictional boundaries. Another helpful feature of cosmopolitanism is to recognise that solidarity demands more than negative respect for universal rights, though allied agendas such as the search for mobilising shared values (such as citizenship) and the impact of broad concepts of collective ‘human security’ go beyond the scope of this chapter. Instead, it is intended to provide a case study of the cosmopolitan treatment of liberty in the face of terrorism. Its treatment within the United Kingdom will be examined for traces of cosmopolitanism in both internal-facing and outward-facing aspects. This focus through the prism of cosmopolitanism on the liberty of individuals suspected of terrorism potentially involves consideration of three internal-facing modalities of restriction: police detention following arrest; administrative restrictions on liberty; and detention pending deportation. Then there is the outward-facing incarceration of the enemies of the state.

"Leveling the Deference Playing Field"

KATHRYN E. KOVACS, Rutgers School of Law – Camden
Email: kathryn.kovacs

Judicial deference to federal agency expertise is appropriate. What is not appropriate is the judicial tendency to give the military more deference than other agencies not only in cases that directly implicate military expertise, but also in administrative law cases raising constitutional, environmental, and employment issues. This article argues that the military should receive no greater deference than other agencies under the Administrative Procedure Act. The APA established a single standard of judicial review for all agencies. Recent empirical studies have confirmed, however, what the case law has long revealed: that courts often apply different standards of review to different agencies, and specifically a “super-deference” standard to the military. This article demonstrates that the APA’s exception for “military authority exercised in the field in time of war,” interpreted correctly, insulates core military functions from judicial review, thus removing any basis for giving the military heightened deference as a matter of course. That exception accommodates separation of powers concerns raised by judicial interference with the President’s authority as Commander in Chief, and it removes concern about courts second-guessing military expertise in particular by making actions that directly implicate that expertise unreviewable.

nationalsecuritylaw upcoming event: Oklahoma University, On Military Commissions (9/12)

August 31, 2011

* upcoming event: Oklahoma University, On Military Commissions (9/12) (see attached doc as well)

The Military Law Society and the University of Oklahoma College of Law cordially invite you to a discussion regarding the decision whether to try 9/11 conspirators through Military Commissions or civilian courts.

The event will feature multiple viewpoints on the matter, including that of Mr. Francis Gilligan, chief prosecutor, and Lieutenant Colonel Jon Jackson, defense counsel, both from the Office of Military Commissions.

This event will be held September 12, 2011, at 3:00 P.M. at the University of Oklahoma College of Law (Bell Courtroom). A reception with refreshments will immediately follow the discussion.

Please RSVP as soon as possible by phone (405-209-8839) or by email ( so we can accommodate you, as various state and university organizations will be in attendance.

MLS 9-11 Event Letter.docx

nationalsecuritylaw reminder: September 16-17, 2011 Seminar on Teaching National Security Law – Invitation, Agenda and Registration Form – hotel reservations due by August 26

August 29, 2011

Dear Colleague:

The ABA Standing Committee on Law and National Security (SCOLNS) and Georgetown University Law Center are cosponsoring a one day seminar on the pedagogy of teaching national security law — approaches and issues, a “Lawyer Jurga”. The Seminar will be held on Saturday, September 17, 2011 on the campus of Georgetown University Law Center, 600 New Jersey Avenue, NW, (Gewirz Student Center, 12th Floor) in Washington, DC, with an opening dinner program on Friday, September 16 at the Army and Navy Club.

Building on last year’s very successful seminar, our goal is to bring together the academic, practitioner, educational, and instructional communities from our nation’s law schools, educational legal centers, and federal legal training institutions including Judge Advocate General and military academies, to discuss the methods, tools, and processes of teaching national security law and training future practitioners in the field of national security law. The seminar will build upon the dedicated work done by many of the pioneers in the field by bringing together the community of national security law teachers.

The seminar will be held from 8:30 a.m. – 5:00 p.m. and will feature law, JAG, and service school panels, as well as a keynote luncheon address by Lieutenant General Dana Chipman, USA. The opening dinner on Friday evening, September 16 will be held at the Army and Navy Club, 901 17th Street, NW on Farragut Square in Washington, DC, starting at 6:30 p.m. with a no-host bar, followed by dinner at 7:00 p.m. Robert Litt, General Counsel, Office of the Director of National Intelligence will deliver keynote remarks and share his thoughts on cross cutting issues.

Registration fee for Saturday, September 17 is $100.00 and will include breakfast, lunch, afternoon break and conference materials. Additionally, there will be a charge of $50.00 for the opening dinner on Friday evening, September 16. Please visit the Committee’s website – hmcmahon) by 5:00 p.m., Monday, September 12.

We have made arrangements for conference participants to stay at the Liaison Capitol Hill, 415 New Jersey Avenue – telephone – 202-638-1616 or 866-233-4642. Please register no later than August 26 to take advantage of the special ABA rate of $139 single/double. Please reference the “ABA Standing Committee on Law and National Security Teaching National Security Law Conference” when making your reservation to obtain this rate.

We very much welcome your participation in this event and hope you will be able to join us and look forward to sharing ideas, approaches and views. We also encourage you to share this announcement with your friends and professional colleagues who might be interested in attending.


Harvey Rishikof William M. Treanor James E. McPherson

Chair Dean, Georgetown Law Standing Committee Member

Jurga Agenda 2011.doc
Jurga 2011 registration form (4).doc

nationalsecuritylaw forthcoming scholarship

August 26, 2011

"The 9/11 Effect: Comparative Counter-Terrorism

Kent Roach (Toronto)

Cambridge University Press (2011)

This book critically and comparatively examines the responses of the United Nations and a range of countries to the terror attacks on September 11, 2001. It assesses the convergence between the responses of western democracies including the United States, the United Kingdom, Australia, and Canada with countries with more experience with terrorism including Egypt, Syria, Israel, Singapore, and Indonesia. A number of common themes – the use of criminal law and immigration law, the regulation of speech associated with terrorism, the review of the state’s whole of government counter-terrorism activities, and the development of national security policies – are discussed. The book provides a critical take on how the United Nations promoted terrorism financing laws and listing processes and the regulation of speech associated with terrorism but failed to agree on a definition of terrorism or the importance of respecting human rights while combating terrorism. It also assesses the failures of the American extra-legal approach and departures from criminal justice and the challenges of transnational cooperation and accountability for counter-terrorism.

A Qualified Defense of American Drone Attacks in Northwest Pakistan Under International Humanitarian Law

Robert P. Barnidge, Jr.

University of Reading, School of Law

Boston University International Law Journal, forthcoming

This paper examines the lawfulness under international humanitarian law of one of the most important and controversial aspects of the Obama Administration‟s approach to fighting terrorism, the use of drone attacks in northwest Pakistan. It begins by exploring developments in drone technology and locates this discussion within the context of the American drone campaign in northwest Pakistan. Since arriving at the legal frame of reference for assessing each of these attacks under international humanitarian law requires determining whether an armed conflict paradigm applies and, if so, how the armed conflict at issue should be classified, this paper then turns to exploring these issues from the perspective of law. It then examines three persistent issues that have arisen in the context of the American drone campaign in northwest Pakistan: the question of collateral damage, with particular reference to the drone attack that killed Tehrik-e-Taliban Pakistan leader Baitullah Mehsud in August 2009, the concern of the 2010 Report of the Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions, Philip Alston, that “[i]t is not possible for the international community to verify the legality of a killing, to confirm the authenticity or otherwise of intelligence relied upon, or to ensure that unlawful targeted killings do not result in impunity,” and the legal implications of Central Intelligence Agency involvement in drone attacks. Ultimately, this paper concludes that American drone attacks in northwest Pakistan are not as such unlawful under international humanitarian law, though, like any method and means of warfare in the context of asymmetric warfare, they should be continuously and closely monitored according to the dictates of law and sensitivity to the facts on the ground.

Anti-Terrorism and Criminal Enforcement

Norm Abrams (UCLA)


From Norm: With the usual apologies about self-promotion, I wanted to let you know that the fourth edition of my Anti-terrorism and Criminal Enforcement casebook is in press and will be published in time for January classes.

The new edition is a major overhaul: the book has been streamlined and shortened to provide a coherent, up-to-date treatment of the significant legal issues that arise in U.S. terrorism investigations and prosecutions.

If anyone would like to take a look at the Preface, which describes the contents of the book in some detail, please contact me off-list.

With best wishes,

Norman Abrams


Tel. 310-794-4056

"Defense Authorization: The Senate’s Last Best Hope"

APSA 2011 Annual Meeting Paper

COLLEEN SHOGAN, Congressional Research Service

For the past 49 years, defense authorizations bills have passed the super-majoritarian Senate. In an era in which authorizations are largely non-existent, how does the Senate Armed Services committee continue to find ways to pass the defense authorization bill? This paper is based on over 20 in-person interviews with current and former Senate defense staffers. It provides a description of the defense authorization process in the Senate, and also explains why Senate Armed Services has been so successfull in enacting the defense authorization bill for decades.

nationalsecuritylaw more 9/11 anniversary events coming up: American Constitution Society, “9/11 at 10” (September 1, National Press Club, Washington, 10am to 2:30 pm)

August 25, 2011
ACS - 10 Years of Progress
The American Constitution Society for Law & Policy invites you to attend:

9/11 at 10

As the nation prepares to mark the 10th anniversary of the tragic events of September 11, 2001, ACS is organizing a symposium to examine some of the past decade’s significant changes to the American legal and policy landscape. The purpose of this event is not to exhaustively discuss all issues that lie at the intersection of national security, civil liberties, and the rule of law, but rather to focus on the areas of surveillance, detainee policy, and broad doctrinal shifts.

Panel 1 (10:00 – 11:30am): Surveillance. Some of the most marked changes in law and policy have occurred in the area of surveillance. While some clear changes to national security law have occurred, such as the passage of the USA PATRIOT Act and the recent reauthorization of some of its most controversial surveillance provisions, other changes have been effectuated through agency policy and guidelines. A group of experts will examine and critique the changes in surveillance law and policy in the past decade, as well as consider how surveillance in the national security arena might have led to more aggressive surveillance practices in other arenas (e.g., surveillance practices being considered in U.S. v. Jones).

The panel will feature:

· Moderator, Jeffrey Rosen, Professor of Law, The George Washington University

· Michael German, Policy Counsel, American Civil Liberties Union

· Deepa Iyer, Executive Director, South Asian Americans Leading Together

· Gregory Nojeim, Senior Counsel and Director of Project on Freedom, Security and Technology, Center for Democracy and Technology

· Suzanne Spaulding, Principal, Bingham Consulting Group; former Executive Director of the National Commission on Terrorism and Assistant General Counsel at the CIA

· Kenneth L. Wainstein, Partner, O’Melveny & Myers LLP; former Homeland Security Advisor to President George W. Bush

Featured Address
(Noon) by William Lietzau, Deputy Assistant Secretary of Defense for Rule of Law and Detainee Policy.

Panel 2 (1:00 – 2:30pm): National Security as a Driver of Doctrinal Shifts in Other Areas of Law & Policy. Many examinations of 9/11’s effects have focused on the national security arena, but in truth, the changes have not been confined to one specific area of law and policy. Scholars and advocates have noted that changes in national security law and policy have had profound effects in other areas of the law, such as criminal procedure (e.g., Miranda procedures), immigration law (e.g., the movement of immigration functions to the Department of Homeland Security), the First Amendment (e.g., material support provisions), and separation of powers (e.g., expansion of executive branch power). A group of experts will discuss such broad doctrinal shifts and their important effects on our civil and criminal justice systems.

The panel will feature:

· Moderator, Charlie Savage, Washington Correspondent, The New York Times

· David D. Cole, Professor of Law, Georgetown University Law Center

· Richard D. Klingler, Partner, Sidley Austin LLP; former General Counsel and Legal Advisor on the National Security Council (2006-2007)

· Wendy Patten, Senior Policy Analyst, Open Society Foundations

· Deborah Pearlstein, Associate Research Scholar, Woodrow Wilson School for Public and International Affairs at Princeton University

· Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor, The University of Chicago Law School

Register Now

Lunch will be provided at 11:30 a.m. with featured remarks beginning at noon

Thursday, September 1, 2011
10:00am – 2:30pm
The National Press Club, Conference Rooms
529 14th Street NW
Washington, DC 20045

nationalsecuritylaw upcoming event: “9/11: A Retrospective Legal Discussion” (ABA SCOLANS breakfast session, 9/15)

August 25, 2011

From the ABA Standing Committee on Law and National Security:

You are cordially invited to join the Standing Committee on Law and National Security for breakfast and discussion – “9/11 – A Retrospective Legal Discussion – on Thursday, September 15, from 8:00 a.m. to 9:15 a.m. Please see attached letter of invitation and registration form.

Holly McMahon

ABA Standing Committee on Law and National Security


letterhead (9).pdf