nationalsecuritylaw forthcoming scholarship

February 6, 2012

A new batch of forthcoming scholarship (titles link to pdfs on ssrn):

"Beyond the Grave Breaches Regime: The Duty to Investigate Alleged Violations of International Law Governing Armed Conflicts"
Yearbook of International Humanitarian Law, Forthcoming

AMICHAI COHEN, Ono Academic College – Faculty of Law, Israel Democracy Institute
Email: acohen
YUVAL SHANY, Hebrew University of Jerusalem – Faculty of Law and Institute of Criminology, Israel Democracy Institute
Email: yshany

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.

"U.S. National Security, Intelligence and Democracy: From the Church Committee to the War on Terror"
Washington & Lee Legal Studies Paper No. 2011-27

RUSSELL MILLER, Washington and Lee University – School of Law
Email: millerra

The most sensational and unique contribution of Germany’s national security constitution has made to the common constitutional struggle to balance security and liberty is the theory of “militant democracy.” Andras Sajo, the best-known contemporary theorist of militant democracy, has written to advocate the implementation of militant democracy in the present struggle against terrorism. “The counter-terror state, following the logic of militant democracy intends to protect certain fundamental rights and values by denying those rights to some people who are believed to abuse the system.” Sajo’s representation of how a comparist would analyze the claims that America can borrow and transplant Germany’s militant democracy as a weapon in the struggle against global terrorism is a traditional, functionalist response.

How should a comparist analyze the claims that America might borrow and transplant Germany’s militant militant democracy as a weapon in the struggle against terrorism? The functionalism tradition “considers legal problems and their solutions in isolation” and “treats comparative law as a technique of problem solving.” The result of this problem-solving emphasis was that comparative law presented issues “generically,” “detached” from specifics, and abstracted from their relevant contexts in an effort to construct ideal law. Functionalism may not address the relevance of values to constitutional protection of democracy or the extent to which “militant democracy” raises critical tradeoffs best understood in light of the unique features of a particular legal or political culture.

The contextual method endeavors to situate various constitutional problems in their animating political circumstances. This contextualization of problems and norms greatly complicates, if it does not confound, attempts at borrowing a legal regime, like Germany’s militant democracy for use in another setting, like America’s struggle with terrorism.

The discursive comparative method focuses on the social milieu in which sociological, historical, economical, and political norms are found. In the case of Germany – economic recovery, then stability, was fundamental to peace, stability, and security because of the widespread devastation confronting the Germans after the war. The contextual comparative effort revealed the fact that economic development played a critical role in pursuing postwar Germany against the enemies of democracy.

"Private Religious Discrimination, National Security, and the First Amendment"
Harvard Law and Policy Review, Vol. 5, p. 347, 2011
U of Chicago, Public Law Working Paper No. 373

AZIZ Z. HUQ, University of Chicago Law School
Email: huq

This essay identifies a negative feedback loop between private discrimination directed at American Muslims and security against terrorism. The first part of the loop is familiar: Concerns about terrorism animate greater antipathy toward outsiders. The second part is novel: social discrimination corrodes trust in the police and makes cooperation with police less likely. Insecurity thus creates discrimination, which deepens insecurity. The Religion Clauses of the First Amendment, now greatly weakened, still provide one tool to break this negative feedback loop.

Intervention in Libya, Yes; Intervention in Syria, No: Deciphering the Obama Administration

Amos N. Guiora

University of Utah – S.J. Quinney College of Law

Deciphering an American presidential administration is truly yeoman’s work. Whether the Obama Administration is significantly distinct from previous administrations is too early to judge. Arguably, the task should be left to historians. Nevertheless, even a casual perusal of President Obama’s Middle East policy (perhaps best described as "policy") reflects a combination of naiveté, inconsistency and murkiness. While perhaps by design, the impact — on the ground — is deeply troublesome. While domestic political considerations are a reality, the implications of the Administration’s policy in an area of the world as treacherous as the Middle East are, potentially, staggering.

Precisely because international law does not articulate either normative or architectural standards as to when international humanitarian intervention is justified, national leaders arguably have a responsibility to act. The oft-cited phrase "when the cannons roar, the muses are silent" is particularly relevant to this discussion. For a variety of reasons, the international community has determined — whether actively or passively — that the massacre of the Syrian population by the Assad government does not justify international humanitarian intervention. While the human rights violations occurring on a daily basis do not compare to the horrors of Rwanda, Kosovo, or Sierra Leone they are not less compelling than the events transpiring in Libya. If, by metaphorical analogy, the international community is the cannons and the U.S. is the muse, does that mean that the Obama Administration is required to be silent? After all, if the quote were to be rigorously applied, then many of the institutions created to minimize human suffering would neither exist, much less function in wartime. While the distinction — from the perspective of international humanitarian intervention — between Libya and Syria is as unclear, as are the criteria that justify intervention, that must not serve as a misguided basis for the Obama Administration to largely turn its back on the Syrian people.

nationalsecuritylaw forthcoming scholarship: JNSLP Special Issue on “Shadow Wars”

February 3, 2012

From the Journal of National Security Law & Policy, an amazing special issue on legal issues associated with covert conflict. Not to be missed! (yes, I am biased)


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The Journal of National Security Law & Policy (JNSLP) is pleased to announce the publication of its special issue, Vol. 5:2, examining “Shadow Wars.” Louis Fisher, preeminent scholar of war and the Constitution as well as JNSLP Editorial Board Member, served as the issue’s guest editor. Articles, which discuss the law and policy regarding U.S. paramilitary operations, are by:

William C. Banks, Director, Institute for National Security and Counterterrorism; Board of Advisors Distinguished Professor of Law, Professor of Public Administration, Syracuse University; Editor-in-Chief, Journal of National Security Law & Policy. Shadow Wars.

Louis Fisher, Scholar in Residence, The Constitution Project. Basic Principles of the War Power.

Herbert Lawrence Fenster, Expert in Government Contract Law. The Great War Powers Misconception.

John Prados, Senior Fellow and Co-Director of the Iraq Documentation Project, and Director of the Vietnam Project at the National Security Archive at The George Washington University. The Continuing Quandary of Covert Operations.

Jennifer D. Kibbe, Associate Professor of Government, Franklin & Marshall College. Conducting Shadow Wars.

Jules Lobel, Professor of Law, University of Pittsburg School of Law. Covert War and the Constitution.

Robert F. Turner, Professor, Associate Director and Co-Founder, the Center for National Security Law, University of Virginia School of Law. Covert War and the Constitution: A Response.

Jules Lobel, Professor of Law, University of Pittsburg School of Law, and Robert F. Turner, Professor, Associate Director and Co-Founder, the Center for National Security Law, University of Virginia School of Law. The Constitutionality of Covert War: Rebuttals.

Afsheen John Radsan, Professor, William Mitchell College of Law; Assistant General Counsel at the Central Intelligence Agency from 2002 to 2004, and Richard Murphy, AT&T Professor of Law, Texas Tech University School of Law. The Evolution of Law and Policy for CIA Targeted Killing.

Richard M. Pious, Adolph and Effie Ochs Professor, Barnard College, Columbia University. White House Decisionmaking Involving Paramilitary Forces.

Loch K. Johnson, Regents Professor of International Affairs, University of Georgia. Intelligence Analysis and Planning for Paramilitary Operations.

Peter M. Shane, Jacob E. Davis and Jacob E. Davis II Chair in Law, The Ohio State University Moritz School of Law. Executive Branch Self-Policing in Times of Crisis: The Challenges for Conscientious Legal Analysis.

Laura A. Dickinson, Oswald Symister Colclough Research Professor of Law, The George Washington University Law School. Outsourcing Covert Activities.

Robert Chesney, Charles I. Francis Professor in Law, University of Texas School of Law. Military-Intelligence Convergence and the Law of the Title 10/Title 50 Debate.

To read articles and subscribe to the print version, visit

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