nationalsecuritylaw forthcoming scholarship

"Taking Humans Out of the Loop: Implications for International Humanitarian Law"

Journal of Law Information and Science, Vol. 21, 2011
University of Miami Legal Studies Research Paper No. 2011-21

MARKUS WAGNER, University of Miami – School of Law
Email: mwagner

Written as a comment to Brendan Gogarty’s and Meredith Hagger’s 2008 article entitled The Laws of Man over Vehicles Unmanned: The Legal Response to Robotic Revolution on Sea, Land and Air, this brief article explores the international humanitarian law implications of the growing trend toward the deployment of autonomous weapon systems. It argues that while technological development has been impressive and continues to advance at a rapid pace, computer technology’s ability to make qualitative determinations is structurally difficult, if not impossible. In light of this, the deployment of fully autonomous weapon systems is illegal, quite apart from the ethical and political challenges that this development presents.

"Material Witness Detentions After al-Kidd"

Kentucky Law Journal, Forthcoming
Widener Law School Legal Studies Research Paper No. 11-26

WES OLIVER, Widener University – School of Law
Email: wmoliver

The Supreme Court’s decision in Ashcroft v. al-Kidd was a tempest in a teapot. The Court concluded only that a witness was no less susceptible to arrest under the Federal Material Witness Statute if the government was interested in prosecuting the witness himself. Unremarkably under the holding, it is no more difficult to detain an al-Qaeda member who witnessed a crime than it is to detain an innocent bystander who witnessed a crime. The fact that a criminal suspect can be held, however, raises concerns beyond the scope of the narrow question before the Court. If the government’s real interest is bringing a case against the witness, the government will be far less circumspect in its decision to seek an arrest warrant for the witness and will not have an incentive to hold the witness in the least restrictive conditions. Vague standards that assume the government’s good faith may be sufficient when the prosecution’s principal interest is the witness’ effective testimony. These standards are insufficient when material witnesses are potentially suspects. The egregious facts of the al-Kidd case reveal that Congress must establish clearer criteria for the arrest and treatment of material witnesses.

Taking Distinction to the Next Level: Accountability for Fighters’ Failure to Distinguish Themselves from Civilians

Laurie R. Blank

Emory University School of Law

Valparaiso University Law Review, 2011-2012

The nature of recent conflicts and the “civilianization” of the battlefield has led many to question the effectiveness of distinction going forward, in essence challenging the very foundations of the law of armed conflict. But is distinction truly on the defensive, or do we simply need to rethink how we approach this most fundamental protective principle? The nature of contemporary conflicts demands that we take distinction to the next level and hold non-state actors and others accountable for the failure to distinguish themselves from innocent civilians. Trumpeting the obligation to distinguish between combatants and civilians and then bemoaning the blurred and complex nature of the zone of combat, in which fighters purposely blend into the civilian population and fight from within the civilian infrastructure, simply falls short of the mark. The next step therefore is to reinforce this distinction not only in the conduct of hostilities but also in the post-conflict accountability phase. International criminal tribunals have issued numerous convictions and sentences for deliberate targeting of civilians, indiscriminate attacks on civilians and disproportionate attacks on civilians – all violations of the principle of distinction. Accountability for violations in this second part of distinction, however, lags far behind. This article will explore how the failure to hold persons accountable for perfidy and other violations of the obligation to distinguish will continue to undermine the ability of the law to provide maximum protection to innocent civilians during armed conflict. These violations pose an equal danger to civilians when soldiers cannot tell who is an innocent civilian and who is a fighter simply disguised in civilian clothes. When militants benefit both tactically and strategically from the use of the civilian population as a shield and as a disguise, the international community must take distinction to the next level and demand accountability for such violations as a critical step in the protection of civilians during armed conflict.

"Conspiracy Law’s Threat to Free Speech"

STEVEN R. MORRISON, University of North Dakota School of Law
Email: steven.r.morrison

In this article, I define the relationship between the systems of criminal conspiracy law and speech rights. This relationship is characterized primarily by two conflicting sets of interests — public safety and freedom to speak — and the fact that conspiracy law’s exigencies virtually always prevail. This means that the law largely fails to acknowledge the need to balance these two sets of interests against each other.

I attempt to engage a positivist approach to my topic by simply describing this intertwinement. This positivist approach leads ultimately to normative questions: what types of speech ought to be admissible to prove agreements and overt acts, and what types of speech should be inadmissible, protected by the First Amendment? should the admissibility of various types of speech remain a static absolute, or should it shift as a function of the remaining evidentiary landscape? should even core First Amendment speech be admissible if closely coupled with some other type of evidence, or should this speech be admissible on its own, at least for some purposes? how do we answer these questions when it comes to potential evidence that is a speech/conduct hybrid?

In this article, I refrain from fully addressing these normative questions. Rather, I present a functionalist approach that acknowledges that both conspiracy law and speech law support important social goals. I then seek to provide a theoretical roadmap toward Pareto improvement. At this point, normativity sets in, as I focus on increasing speech rights without undermining public safety.

To do so, I discuss the history of the intertwinement of conspiracy law and speech rights, beginning in 1867-69. I then argue that we are today living in the third First Amendment crisis. When it was once anarchists and communists being targeted, it is now Muslims. I illustrate how Muslims are being targeted for their unpopular speech through the medium of conspiracy law. This process is common to all abusive conspiracy charges since the early twentieth century, and points the way to Pareto improvement.

"The New Conspiracy to Support an Idea"

STEVEN R. MORRISON, University of North Dakota School of Law
Email: steven.r.morrison

This article sets forth the argument that conspiracy law in the United States may be entering a new stage, thanks to the efforts of government prosecutors in the terrorism context. The new stage is characterized by the criminalization of conspiracies to support an (unpopular) idea.

This new conspiracy paradigm confronts the intertwined relationship between conspiracy law and speech rights. Its foundational argument is that speech rights are limited in the context of a conspiracy trial because speech is used as evidence against a defendant. This is not a bad thing per se. The conflict between conspiracy law’s interests and speech rights is questioned, however, when defendants’ anti-American and pro-“jihad” speech is used when it could indicate support for terrorism, a fundamentalist (but nonviolent) religiosity, or mere protest against the U.S. military’s involvement in the Middle East.

I show that the government’s current targeting of Muslims is a continuation of our historic struggle to secure speech rights in light of criminal charges against other unpopular groups, namely anarchists and communists. I also show how contemporary criminal statutes and the evidentiary rules in conspiracy trials enable the targeting of an unpopular group.

I then offer an approach to solving the problem of abusive conspiracy charges (those charges involving defendants who were not engaged in crime, but were simply exercising their speech rights). This approach rejects the zero sum notion that an increase in speech rights means reduced effectiveness of conspiracy law to secure public safety. Rather, I believe we live in a system of non-zero-sumness, in which we can both maximize speech rights and protect society from truly dangerous conspiracies.

To illustrate my rejection of the zero sum approach, I introduce the concept of “interest brinkmanship.” In the speech-conspiracy context, this means that with every increase in speech rights, application of conspiracy law also increases. The zero sum approach logically would result in vast direct speech protections, but also a universally applied conspiracy law that ultimately restricts speech by proxy. We need to engage a non-zero-sum approach if we are to secure our right to speech and maintain a legitimate conspiracy law system that actually protects society.

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