* forthcoming scholarship
The Soldier, the State and the Separation of Powers (email dpearlst for copy of the paper)
Deborah N. Pearlstein (Cardozo)
(forthcoming Texas L. Rev. 2012)
As U.S. counterterrorism activities continue to engage the armed forces in profound legal and policy debates over detention, interrogation, targeting and the use of force, recent legal scholarship has painted a grim picture of the vitality of civilian control over the U.S. military. Prominent generals leverage their outsized political influence to manipulate the civilian political branches into pursuing their preferred course of action. Bureaucratically sophisticated officers secure the adoption of their policy judgments in the Executive Branch and Congress contrary to civilian preferences. And misplaced judicial deference to military expertise on what is necessary to regulate the special community of the armed forces exacerbates the growing social separation between the military and the society it serves. The question of how to distinguish expert advice from undemocratic influence that has long surrounded the work of administrative agencies is made especially complex by the unique constitutional role of the military. Before one can tell whether civilian control is threatened, one must first have some understanding of what it is. Yet for all the intense focus in recent years on the legality of what the military does, where the modern military fits in our constitutional democracy has remained remarkably under-theorized in legal scholarship. Moreover, prevailing theories of civilian control in the more developed social and political theory literature of civil-military affairs view the Constitution’s separation of powers – in particular, the allocation of authority over the military to more than one branch of government – as a fundamental impediment to the maintenance of civilian control as they take it to be defined. As a result, there remains a significant gap in the development of a constitutional understanding of the meaning of civilian control. This Article is an effort to begin filling that gap, by examining whether and how the constraining advice of military professionals may be consistent with our modern separation of powers scheme.
Detention Debates ((email dpearlst for copy of the paper)
Deborah N. Pearlstein (Cardozo)
(forthcoming Michigan L. Rev. 2012 – Annual Survey of Books Related to the Law)
Ten years after the attacks of September 11, 2001, what progress has the United States made in resolving how to handle the detention of wartime combatants and terrorist suspects? According to Brookings scholar Ben Wittes’ latest book, Detention and Denial, little more than what had been made when the United States began transporting detainees to Guantanamo Bay in early 2002. He urges that it is time to redesign and rationalize the current system of rules the United States has for detaining terrorist suspects – whether captured by our military, intelligence, or law enforcement agents. Further, drawing on U.S. detention experiences of the past decade, he seeks to shed light on which among the branches in our federal government are institutionally suited to resolving the thorny questions of law and policy underlying the determinations of who may be detained and why. Wittes particularly targets both political branches for their irrationality and cowardice in failing to address such issues before now. It thus seems especially unfortunate that Wittes vests least hope in the capacities of the courts, one of the few institutional actors that has been regularly compelled in recent years to provide specific answers to complex questions of substantive detention powers and procedures. This review evaluates Wittes’ case, as a matter of both detention policy and structure, and explores which institutional characteristics might lead us to prefer the involvement of one branch or another in resolving detention-related questions. While concluding that the book fails to shed much new light on the great national debate over detention, the review recognizes that the book does a service nonetheless in highlighting the ongoing importance of the questions.
"Centers of Concatenation: Fusing Data in Post-9/11 Security Organizations"
TORIN MONAHAN, Vanderbilt University
PRISCILLA M. REGAN, affiliation not provided to SSRN
In this paper, we draw upon empirical research on fusion centers to theorize contemporary state surveillance. Instead of viewing fusion centers as central repositories for the stockpiling and sharing of personal data, we introduce the concept of “centers of concatenation” to describe the ways in which disparate data are drawn together as needed, invested with meaning, communicated to others, and then discarded such that no records exist of such surveillance activities. In these ways, fusion centers perform an erasure, or a selective non-generation, of data about their own practices, thereby creating zones of opacity that shield them from accountability. This is concerning particularly because fusion centers are rapidly becoming primary portals for law-enforcement investigations and the model for information sharing by security agencies more broadly.
"Spies Without Borders: International Law and Intelligence Collection"
Journal of National Security Law and Policy, Vol. 5, 2011
CRAIG FORCESE, University of Ottawa – Faculty of Law
This article examines the status of peacetime spying in international law. Part I defines “spying” as the term is used in the article, focusing on collection of intelligence from human and electronic sources. The article then divides spying into geographic zones: territorial; extraterritorial; and transnational. In Part II, it examines doctrines of international law applicable to spying in each of these three geographic areas, focusing on sovereignty rules, international immunities and human rights principles. The article concludes that the question of international law and intelligence-gathering is not easily reduced to a simple question of legality or not. Instead, an assessment of legality depends on a careful assessment of the location and technique of spying in question.
"A ‘Watch Dog’ of Australia’s Counter-Terrorism Laws – The Coming of the National Security Legislation Monitor"
Flinders Journal of Law Reform, No. 12, pp. 83-118, 2010
UNSW Law Research Paper No. 26
ANDREW LYNCH, University of New South Wales
NICOLA MCGARRITY, University of New South Wales (UNSW)
The Independent Reviewer of Terrorism Legislation in the United Kingdom has been an influential model for Australia, with the general consensus amongst bodies reviewing Australia’s anti-terrorism laws being that an Australian office should be created along similar lines. In this paper, we consider the history and recent performance of the United Kingdom Independent Reviewer in order to better understand the strengths and deficiencies of this model. These insights contribute to our discussion about the merits of two Bills introduced into the Commonwealth Parliament in 2008 and 2009, which proposed the establishment of an Independent Reviewer of Terrorism Legislation or National Security Legislation Monitor in Australia. The second of these Bills, the National Security Legislation Monitor Bill 2009 (renamed the Independent National Security Legislation Monitor Bill 2010 by the Senate) was passed by the Commonwealth Parliament in March 2010. In examining the 2008 and 2009 Bills, the article examines the final reports of two separate Senate Committee reports into the two Bills, and draws upon and critiques the arguments raised by the various stakeholders who made submissions to those Committees.