nationalsecuritylaw forthcoming scholarship

"Mirandizing Terrorists? An Empirical Analysis of the Public Safety Exception"

Columbia Law Review, Vol. 111, No. 1, 2011

JOANNA WRIGHT, Columbia Law Review
Email: joanna.wright

The Quarles Public Safety Exception (“PSE”) exempts testimony from Miranda’s exclusionary rule and admits un-Mirandized statements made in response to questions intended to secure public safety. Recently, legislators, advocates, and academics have questioned the PSE’s ability to accommodate the unique challenges of terrorist interrogations, calling for legislative modification to or the elimination of suspected terrorists’ constitutional right to Miranda warnings. Before concluding that such drastic measures are necessary, this Note advocates for a logical, grounded assessment of the judiciary’s actual application of the PSE, learning as much as possible from the past case law to gauge exactly how courts utilize the PSE. This analysis examines whether or not the PSE is, in fact, capable of handling the unique challenges of terrorist interrogations. This Note conducts an empirical study of the PSE, systematically categorizing every state and federal court opinion that definitively asserts the appropriate application of the PSE, filtering the opinions through different metrics and variables relevant to terrorist interrogations. Ultimately, this Note concludes that the PSE is a fact-sensitive, capacious device equipped to properly handle the unique nature of terrorist interrogations, due largely to its malleability in the hands of the courts. Part I tracks the doctrinal evolution of confessions law leading up to the PSE. Part II presents the results of an empirical examination of the entire universe of Quarles case law. Part III pinpoints individual opinions that showcase features of the PSE particularly relevant to the debate. The data and analysis show, in conclusion, that Miranda warnings coupled with the PSE empower law enforcement to adequately interrogate suspected terrorists.

"Use It and Lose It": An Exploration of Unused Counterterrorism Laws and Implications for Future Counterterrorism Policies

Stephanie Cooper Blum

Department of Homeland Security ; Michigan State University

Lewis & Clark Law Review, Forthcoming 2012

This Article explores why the Executive Branch has declined to use three counterterrorism laws–the Alien Terrorist Removal Court, Section 412 of the Patriot Act, and the lone-wolf amendment to the Foreign Intelligence Surveillance Act–and suggests that the reason may be fear that the laws are unconstitutional and, paradoxically, that in some cases they provide too many rights to suspected alien terrorists. The Article also offers three insights from the non-use of counterterrorism laws: (1) that Congress may be passing political responses instead of needed counterterrorism protection; (2) that the judicial branch is using these laws to narrow the scope of other counterterrorism measures, and (3) that we may have a potential gap in security. In this way, the study of unused counterterrorism laws can prove just as insightful and helpful an exercise as the more traditional analysis of frequently-used counterterrorism measures

"Self Defense Targeting: Conflict Classification or Willful Blindness?"

GEOFFREY S. CORN, South Texas College of Law
Email: gcorn

Willful blindness is a criminal law evidentiary concept used when knowledge of a particular fact or result is at issue. It allows the finder of fact to impute such knowledge to a criminal defendant when the evidence indicates the defendant willfully avoided learning true facts in the face of obvious indicators. In essence, it transforms a reckless failure to verify critical facts into knowledge of those facts. This doctrine seems to almost perfectly characterize the apparent effort to avoid the jus in bello classification of counter-terror military operations by relying on the overarching jus ad bellum legal justification for these operations. This so called ‘self-defense targeting’ concept, or what Professor Kenneth Anderson calls ‘naked self-defense,’ appears to provide the U.S. legal framework for employing combat power to destroy or disrupt the capabilities of transnational terrorist operatives. This essay will address why reliance on this self-defense targeting concept is in essence an exercise in international legal willful blindness, and why as a result the jus in bello classification of such operations should be imputed by the invocation of jus ad bellum self-defense.

The recent attack on Osama Bin Laden’s compound in Pakistan has exposed in stark relief the importance of defining the legal framework applicable to the use of military force as a counter-terrorism tool. The initial focus of the public debate generated by the attack was the relative legitimacy of the U.S. invocation of the inherent right of self-defense to launch a non-consensual operation within the sovereign territory of Pakistan. However, that focus soon shifted to another critical legal question: even assuming the legitimacy of this invocation, what law regulated the execution of the operation? By virtue of his role as the leader of al Qaeda, was Bin Laden a lawful military objective within the meaning of the law of armed conflict, and thereby subject to attack with deadly force as a measure of first resort? Or was he merely an international criminal, subject to a much more limited law enforcement use of force authority? The duality of the jus belli issues implicated by the attack generated a two prong legal critique: first, did the mission violate the international legal prohibition against use of force (jus ad bellum)? Second, did the mission trigger the law of armed conflict, or was the amount of force employed during the mission resulting in Bin Laden’s death excessive to that which was necessary to apprehend him? The self-defense targeting theory failed to sufficiently address this duality.

Bin Laden and Awlaki: Lawful Targets

Major Shane Reeves and Lieutenant Colonel Jeremy Marsh

Harvard International Review (Oct. 2011)

[From the introduction:] Many have challenged the legality of the 2011 United States’ operations that resulted in the deaths of Osama Bin Laden and Anwar al-Awlaki. Pakistan condemned the Bin Laden operation as a violation of international law; human rights advocates asserted that each man should have been captured instead of killed; and others claimed the operations were unlawful “assassinations” or, in the case of Awlaki, a violation of his constitutional rights as an American citizen. These criticisms are all without merit. ….

"After "Top Gun": How Drone Strikes Impact the Law of War"

University of Pennsylvania Journal of International Law, Vol. 33, 2012

LAURIE R. BLANK, Emory University School of Law
Email: lblank

The U.S. drone program has sparked extensive and intense public commentary –academic, policy-oriented, and media – regarding targeted killing of terrorist operatives using armed drones. However, such attacks are only a small portion of how drones are used and how they can be used. Drones are used extensively for intelligence, surveillance and reconnaissance (ISR), including identification of targets, and to support troops on the ground. This article focuses on contemporary jus in bello questions posed by the use of drones and will analyze drones as a weapons system within the law of armed conflict, leaving the jus ad bellum questions aside.The first section will address foundational questions regarding the application of the law of armed conflict to drones, including the legality of armed drones as a weapons system and their use in accordance with the key law of armed conflict requirements of distinction, proportionality and precautions in attack. Although many argue that the “joystick mentality" of remotely piloted aircraft and weapons can lead to desensitization and a decreased likelihood of adherence to international norms, the examination here demonstrates that drones indeed offer extensive and enhanced opportunities for compliance with the law of armed conflict. In the second section, this article will explore how the burgeoning use of armed drones raises new questions for some traditional concepts and categories within the law of armed conflict, such as the status of persons and the geographical locus of attacks and hostilities and potentially new challenges in the implementation of distinction and proportionality. Notwithstanding significant hue and cry regarding their use over the past several years, the use of armed drones offers the potential for improved law of armed conflict compliance and protection of civilians during armed conflict.

"Prosecuting Terrorism in International Tribunals"

Emory International Law Review, Vol. 24, No. 2, 2010

JOHAN VAN DER VYVER, Emory University School of Law
Email: jvand02

Terrorism can be defined as acts of violence directed against a civilian population or civilian objects for the purpose of spreading terror among civilians and with a view to intimidating persons in authority to submit to the demands of the perpetrators. Terrorism has been condemned by the international community and has indeed been recognized as a crime under customary international law. However, there are still those who believe that persons engaged in a war of liberation — that is, an armed struggle against colonial rule, foreign domination, or a racist regime — are entitled to resort to acts of terror in order to achieve their “noble objectives”, but following September 11th, that view has been discredited in several resolutions of the General Assembly on the United Nations and of the Security Council.

Terrorism is not included in the subject-matter jurisdiction of the International Criminal Court (ICC) but can be prosecuted in the ICC as an added component of war crimes such as directing an attack against individual civilians not taking a direct part in hostilities. Terrorism is also not expressly included in the subject-matter jurisdiction of the International Criminal Tribunal for the Former Yugoslavia (ICTY) but has been prosecuted in the ICTY under provisions in the Geneva Conventions of 12 August 1949 which prohibit acts of violence directed against civilians for the purpose of spreading terror in the civilian population. It should be noted, though, that terrorism does not only require the special intent to spread terror among the civilian population but also the further special intent of intimidating persons in authority to give in to the demands of the terrorists.

"Direct Versus Indirect is Not the Question: Assessing the Legality of In-Person and Drone Targeted Strikes"

NATASHA MARUSJA SAPUTO, affiliation not provided to SSRN
Email: natashenkah

The use of drones to carry out targeted strikes against alleged members of al-Qaeda and the Pakistani and Afghan Taliban in States – such as Pakistan and Yemen – outside the direct theater of combat where armed conflict is occurring for Operation Enduring Freedom in Afghanistan is extraordinarily controversial. Much of the controversy stems from the fact that there is no consensus as to the applicable legal framework to evaluate the legality of such strikes. Conversely, the use of in-person strike teams purportedly commissioned by Israel to carry out targeted strikes against alleged members of hostile organizations and foreign governments deemed to be a threat to Israel in States in which no armed conflict is occurring is roundly condemned by the vast majority of the international community. This divergence is notable because upon closer examination the two types of strikes may not be meaningfully dissimilar from a legal standpoint.

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