nationalsecuritylaw forthcoming scholarship

April 30, 2012

Maritime Piracy: Changes in U.S. Law Needed to Combat this Critical National Security Concern

Daniel L. Pines

Central Intelligence Agency
Seattle University Law Review, Forthcoming

Many articles have recently been written on maritime piracy. Most of these articles focus on the problem through the prism of the international community and international law. The few articles that view the matter through U.S. eyes tend to examine it as a distant economic or geo-political concern. Yet, for the United States, the true threat posed by piracy is not to our economy or geo-politics; it is to our national security. Just as terrorists exploited aviation hijacking in the 9/11 attacks, a similar terrorist threat looms via piracy. This article therefore seeks to explore the parameters offered by U.S. law to permit the United States to combat this national security problem. It concludes that international and U.S. law offer numerous, wide-ranging authorities for the U.S. government to attack pirates, seize their vessels, and prosecute the offenders under a plethora of charges both in the United States and abroad. Yet much more should to be done if we are to seriously stave off this threat. Changes to U.S. statutes and regulations are desperately needed to allow U.S. vessels to defend themselves from maritime pirates, the U.S. military to capture such marauders, and the U.S. justice system to prosecute such criminals.

Convergence of Norms Across the Spectrum of Armed Conflicts – International Humanitarian and Human Rights Law

Emily Crawford

University of Sydney – Faculty of Law

International armed conflicts are by far the most highly regulated types of conflict, with a raft of treaties and comprehensive customary international law regulating permissible state conduct. By comparison, non-international armed conflicts have comparatively few laws regulating their conduct. However, despite the apparent lack of comprehensive treaty rules regulating non-international armed conflict, and the seemingly entrenched legal division between the types of armed conflicts, an examination of the history of IHL actually demonstrates a growing willingness among states to accept the introduction of more rules – and more detailed rules at that – on permissible conduct in non-international armed conflicts. The progressive development of the law of armed conflict over the past century has evidenced a growing acceptance of the need for comprehensive guidelines on the conduct of hostilities, whether they are international or non-international. This confluence of norms has been influenced significantly by the emergence in the post-World War II era of international human rights law. The wealth of treaties, declarations and customary law protecting human rights has seen states began to accept limits on their sovereign power in the name of protecting the rights of their citizens. In turn, the belief that states’ rights could only extend so far in their conduct towards their citizens necessarily influenced the conduct of states in non-international armed conflicts. With this background in mind, this chapter will examine how, over the past 60 years, we have seen a convergence in the laws relating to armed conflict, to the point that it is possible to speak of a large body of law applicable in all armed conflicts.

Offensive Lawfare and the Current Conflict

Colonel Mark W. Holzer (Deputy Chief, Int’l and Operational Law Div., OTJAG, US Army)

Harvard National Security Journal

The term "lawfare" has become part of the lexicon of the current global conflict and although it is defined in various ways, it is essentially a way to describe legal activities within the context of armed conflict. To date, the term has not been applied to legal activities focused on negatively impacting United States’ adversaries. This article seeks to expand the lawfare conversation and encourage a policy dialogue by weaving it together with the Army’s operational doctrine and counterinsurgency doctrine.

The United States Army’s operational concept provides a framework to conceptualize "offensive lawfare" which, in the current global counter-insurgency conflict, should be understood to include efforts to deny enemy forces sanctuary, to blunt their abuse of courts, and to use both foreign and domestic courts to better support our national security strategy. Policy discussions to improve our offensive lawfare posture should include providing support to litigants in certain domestic and foreign court actions that are deemed to be congruous with these ends. More specifically this article advocates broadening the national security policy discussion to include providing support to plaintiffs in terrorism related civil litigation domestically, to certain defendants in certain foreign criminal actions, to defendants in foreign civil litigation that is deemed to be related to the current conflict, and to plaintiffs pursuing foreign causes of action against terrorist organizations and their supporters.

From the Oppressed to the Terrorist: American Muslim Women Caught in the Crosshairs of Intersectionality

Sahar F. Aziz

Texas Wesleyan University School of Law
Hastings Race & Poverty Law Journal, Vol 8, No. 1, Spring 2012

In the post-9/11 era, Muslim women donning a headscarf in America find themselves trapped at the intersection of bias against Islam, the racialized Muslim, and women. In contrast to their male counterparts, Muslim women face unique forms of discrimination not adequately addressed by Muslim civil rights advocacy organizations, women’s rights organizations, or civil liberties advocates.

The paper argues that the Muslim woman is a casualty of the post-9/11 “war on terror” in ways different from Muslim men. Not only are her religious freedoms under attack in ways different from men because the headscarf is unique to women, but she is objectified in ideological and corporal domestic conflicts that profoundly affect her life. Perhaps worse than the gender rights debates of the 1990s when Muslim women were talked about rather than talked to, their experiences post-9/11 are completely neglected by Western feminists or used by Muslim male spokespersons to implement a civil rights agenda tailored to the Muslim male experience. Consequently, Muslim women are trapped in the crosshairs of national security conflicts that profoundly affect their lives but not yet adequately addressed by advocacy groups focused solely on defending Muslims, women’s rights, or civil liberties post-9/11.

Section I of this paper prefaces the paper’s thesis by highlighting Islam’s transition from obscurity to notoriety in the American public’s psyche as a result of the September 11th attacks. Section II highlights how the recasting of Islam from a bona fide religion to a political ideology is a necessary precursor for accepting otherwise discriminatory acts as legitimate national security practices. The reclassification is most glaring in the nationwide campaigns opposing mosque constructions because of the public’s fixation on mosques as hotbeds of extremism. Likewise, as Islam becomes defined as an expression of politics instead of religion, demands for religious accommodation by Muslims are deemed stealth Islamic imperialism not protected by law. Against this backdrop, Section III demonstrates how the meaning of the Muslim headscarf has transformed from a symbol of female subjugation to a symbol of terror(ism). Through an analysis of employment discrimination, racial violence, political marginalization, and exclusion from the courthouse, this article demonstrates how the transition in meaning of the headscarf has resulted in palpable and widespread discrimination against Muslim women donning the headscarf. Yet, discourse on civil liberties in the national security context are woefully lacking due to the glaring absence of the Muslim woman’s voice. Section IV calls for a prescriptive rethinking of strategies aimed at redressing anti-Muslim bias and civil liberties infringements that take into account the gender component of post-9/11 discrimination.

By developing a more accurate and in-depth analysis of their complicated circumstances post-9/11, this article aims to include “headscarved Muslim women” in the relevant debates among legal theorists.

nationalsecuritylaw text of John Brennan’s speech at the Wilson Center (on the use of lethal force)

April 30, 2012

Posted here. Video of the talk here.