nationalsecuritylaw forthcoming scholarship

"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"

JOHN CHARLES RICHARDSON, JMR Portfolio Intelligence
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.

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