nationalsecuritylaw forthcoming scholarship

"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.

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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.


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