nationalsecuritylaw upcoming event: Greg McNeal on Collateral Damage in Combat Operations

January 16, 2012

Upcoming Event: Federalist Society International & National Security Law Practice Group Teleforum featuring Professor Greg McNeal, on “Collateral Damage in Combat Operations”

Note that this one takes place tomorrow at 1pm eastern:

Collateral Damage in Combat Operations
A Teleforum Sponsored by the International & National Security Law Practice Group

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Professor Gregory S. McNeal*

Pepperdine University School of Law

Tuesday, January 17, 2012

at 1:00 p.m. (EST)


No registration is necessary.

To participate in this practice group Teleforum, please dial 888-752-3232
on Tuesday at 1:00 p.m. (EST) via telephone.

Professor Gregory McNeal will discuss how the U.S. military implements its International Humanitarian Law obligation to mitigate and prevent harm to civilians during combat operations. He will describe the process the U.S. military follows to estimate and mitigate the impact of conventional weapons on collateral persons and objects in most pre-planned military operations involving air-to-surface weapons and artillery.

In recent years, an entire body of academic literature and policy commentary has been based on an incomplete understanding of how the U.S. conducts military operations. The literature is incomplete because U.S. practices are shrouded in secrecy and largely inaccessible. As a result commentators have lacked a descriptive foundation to analyze and critique U.S. operations. Their writings have focused on easily describable issues such as whether a target was a lawful military objective, and then typically shift attention to the question of proportionality balancing and collateral damage. These commentators skip an important aspect of actual practice – the scientifically grounded mitigation steps followed by U.S. armed forces. Those mitigation steps are designed to ensure a less than 10% probability of collateral damage resulting from any pre-planned operation.

You can read Professor McNeal’s recent paper on this topic by clicking here.

*Professor McNeal is a national security specialist focusing on the institutions and challenges associated with global security, with substantive expertise in national security law and policy, criminal law, and international law. He previously served as Assistant Director of the Institute for Global Security, co-directed a transnational counterterrorism program for the U.S. Department of Justice, and served as an advisor to the Chief Prosecutor of the Department of Defense Office of Military Commissions on matters related to the prosecution of suspected terrorists held in the detention facility in Guantanamo Bay, Cuba. His legal scholarship has been published by The Northwestern University Law Review, The Richmond Law Review, The DePaul Law Review, and various top ranked international law and policy journals. His co-edited book Saddam On Trial: Understanding and Debating the Iraqi High Tribunal was selected as one of three finalists for L’Association Internationale de Droit Penal’s Book of the Year Award.

During law school Professor McNeal was selected as executive editor for the Harvard Journal of Law and Public Policy (Symposium Edition). His doctoral work focuses on public policy and administration and organizational theory in a global policy context. Professor McNeal has testified before Congress, consulted with Congressional committees, the Iraqi High Tribunal, and Fortune 500 companies on matters related to counterterrorism, international criminal law, and national security. Before becoming an attorney he served as an officer in the United States Army.

He is the editor in chief of The National Security Law Report, the flagship journal of the American Bar Association’s Standing Committee on Law and National Security. He also serves as a member of the Executive Committee of the AALS Section on National Security Law, and Vice President of the American National Section of the International Association of Penal Law. His popular writing has appeared in publications such as The New York Times, The Washington Times, and The Baltimore Sun. He has appeared on Fox News Channel, NPR, BBC, C-SPAN, CNN and other national media outlets as an expert commentator on national security and international law, and is a frequent participant in academic symposia regarding national security. He has been quoted by Time Magazine, The New York Times, and other publications. He blogs at The Law and Terrorism Blog and maintains an SSRN account.

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**All calls listed are EST.

No registration is necessary.

Dial in number is 888-752-3232.

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nationalsecuritylaw forthcoming scholarship

January 16, 2012

"Domestic Investigation of Suspected Law of Armed Conflict Violations: United States Procedures. Policies, and Practices"

SEAN WATTS, Creighton University School of Law
Email: seanwatts

The Israeli interception of a flotilla of civilian ships bound for Gaza in May of 2010 fueled ongoing questions about the content, efficacy, and adequacy of the law of armed conflict (LOAC). Debate focused quickly on fundamental substantive legal issues such as proportionality, humanitarian assistance, treatment during detention, and even the overall legal character of the hostile relationship between Israel and Hamas. Quickly, however, debate spread beyond mere doctrinal matters of LOAC interpretation and application. Critics have begun to devote significant attention to the procedural aspects of States’ investigative responses to LOAC violations. Crucial questions include the degree of independence and neutrality required and whether domestic, internal military investigations can ever suffice to address what are alleged breaches of international legal obligations. Still deeper methodological and interpretive inquiries surely loom as well. For instance, to what extent does international law regulate the processes of investigations of potential LOAC violations? Or better yet, to what extent to do States regard investigative procedure as an issue committed to LOAC or international law more generally?

This Comment briefly outlines the investigative procedures available under current United States domestic law for suspected LOAC violations including formal and informal procedures available under both civil and military justice systems. The Comment gives special attention to evidence that U.S. investigative procedures, policies, and protocols are influenced by or are functions of perceived international legal obligations. The Comment concludes by offering a few brief observations concerning the U.S. system and the likely direction of future international law-based scrutiny of domestic LOAC investigations.

War Time: An Idea, Its History, Its Consequences

Mary Dudziak, U. Southern Cal.

When is wartime? On the surface, it is a period of time in which a society is at war. But we now live in what President Obama has called "an age without surrender ceremonies," as the Administration announced an "end to conflict in Iraq," even though conflict on the ground is ongoing. It is no longer easy to distinguish between wartime and peacetime. In this inventive meditation on war, time, and the law, Mary Dudziak argues that wartime is not as discrete a time period as we like to think. Instead, America has been engaged in some form of ongoing overseas armed conflict for over a century. Meanwhile policy makers and the American public continue to view wars as exceptional events that eventually give way to normal peace times. This has two consequences. First, because war is thought to be exceptional, "wartime" remains a shorthand argument justifying extreme actions like torture and detention without trial. Second, ongoing warfare is enabled by the inattention of the American people. More disconnected than ever from the wars their nation is fighting, public disengagement leaves us without political restraints on the exercise of American war powers.

Visit to learn more.

Beyond the Grave Breaches Regime: The Duty to Investigate Alleged Violations of International Law Governing Armed Conflicts

Amichai Cohen

Ono Academic College – Faculty of Law; Israel Democracy Institute

Yuval Shany

Hebrew University of Jerusalem – Faculty of Law and Institute of Criminology; Israel Democracy Institute

Yearbook of International Humanitarian Law, Forthcoming

The purpose of the present article is to critically evaluate the contemporary international law obligation to investigate military conduct in times of conflict and to identify relevant normative trends. In a nutshell, we argue that the traditional focus on the Geneva grave breaches regime in the context of military investigations is misplaced. The duty to investigate is far broader – encompassing the alleged violation of many other norms of IHL and IHRL.

"Calling the Government to Account: Habeas Corpus after Boumediene"

JONATHAN HAFETZ, Seton Hall Law School
Email: jonathan.hafetz

In June 2008, the Supreme Court decided Boumediene v. Bush, holding that Guantanamo detainees have a right to habeas corpus under the Constitution’s Suspension Clause. In the more than three years since Boumediene, lower federal courts in Washington D.C., have issued nearly eighty decisions addressing the merits of Guantanamo habeas cases. In the process, they have developed an emerging body of national security detention jurisprudence, with implications that transcend the Guantánamo habeas cases. This Article surveys this post-Boumediene jurisprudence and assesses its implications. Although it is too early to draw any definitive conclusions, the growing body of habeas decisions provides a window into Boumediene’s impact and the legacy of the post-9/11 enemy combatant decisions more generally. In particular, the Article describes the significance and limitations of what Boumediene described as a critical function of habeas: calling the government to account by requiring that it provide a lawful basis for a prisoner’s detention.

"The Executive’s Authority Over Enemy Combatants: Due Process and its Limits"

Criminal Law and Procedure, p. 94, 2011
Loyola University Chicago School of Law Research Paper

BARRY SULLIVAN, Loyola University Chicago School of Law
Email: bsullivan7
MEGAN CANTY, Loyola University Chicago School of Law
Email: mcanty

For almost a decade, the U.S. judicial system has had to deal with what might be called the legal “fall-out” from the “war on terror.” In 2008, the U.S. Supreme Court resolved one basic question by holding in Boumediene v. Bush, that non-citizens held at Guantanamo Bay, Cuba, were constitutionally entitled to seek habeas corpus relief in the federal courts. That result seemed like a major victory for the Guantanamo detainees. However, on the same day it decided Boumediene, the Court also decided Munaf v. Geren, a case that received much less attention, but was far more favorable to the Government. In Munaf, the Court held that the decision to transfer a detainee from US custody to that of another nation was committed to the Executive and substantially immune from judicial review.

The upshot of the decisions in Boumediene and Munaf, taken together, is that individuals detained by the Government may petition the courts for release while in US custody, but lack legal recourse if the Executive transfers them to the custody of another State. While Boumediene may have authorized the courts to review the status of enemy combatants, Munaf effectively empowered the Executive to evade such review by turning over a detainee to another country. This article will examine the present state of the law, by examining the development of the Supreme Court’s habeas jurisprudence, beginning with the 2004 decision in Hamdi v. Rumsfeld, and ending with several petitions for review that the Court will soon consider. The Supreme Court may or may not grant one or more of the currently pending petitions. If it does, the resulting decision may have a felicitous impact on the development of the law in this area. If that is to be the case, however, it will be necessary for the Court to take a more holistic approach than that which has characterized its decisions to this point.

nationalsecuritylaw Upcoming event: 7th Annual Homeland Security Law Institute

January 16, 2012

From our friends at the ABA:


7th Annual Homeland Security Law Institute
March 22-23, 2012, Capital Hilton, Washington, DC
Tentative Agenda | Registration Form (fillable PDF) | Register Online

2 Days – 90 of the foremost experts in Homeland Security – 12+ Hours of CLE Credit! This cutting edge program is designed for attorneys in government, private practice and academia, as well as non-attorney agency personnel.

Program topics include:

  • Executive Agency General Counsel’s Panel featuring the National IntelligenceAgency Central Intelligence Agency, National Geospatial-Intelligence Agency and Federal Bureau of Investigation
  • Regulatory and Legislative Developments 2012 from the Department of Homeland Security
  • Homegrown Threats and Radicalization
  • Homeland Defense and Civil Support: The Role of the Military Within Our Own Borders
  • Cargo and Supply Chain Security; Emerging Compliance Issues for Government Contractors
  • The Law Enforcement Agenda for 2012
  • Homeland Security & Information Sharing: Perspectives from Federal, State & Local Governments and the Private Sector
  • PrivateCivil Litigation Against Alleged Terrorist Sponsors
  • Volatility Overseas and its Affect on America’s Homeland Security
  • Pressing Challenges in Immigration Law & Policy
  • National Preparedness: Have 10 Years and Billions of Dollars Made our Communities Better Prepared
  • CyberSecurity Developments in the Federal Government and Private Sector
  • Careers in Homeland Security and National Security
  • Chemical Facility Anti-Terrorism Standards
  • Dealing with Disaster
  • International Issues: FCPA and OFAC
  • CFIUS and Foreign Investments

    If your professional life includes responsibility for safety, security or emergency response, you should participate in this program. We hope to see you in Washington in March!