nationalsecuritylaw Omar Khadr sent from GTMO to Canada

September 29, 2012

From DoD:

Detainee Transfer Announced
09/29/2012 10:10 AM CDT

nationalsecuritylaw Two-Year National Security Law Fellowship at Georgetown Law

September 28, 2012

National Security Law FellowshipThe Georgetown Center on National Security and the Law is now accepting applications for a two-year National Security Law Fellowship designed for a highly-qualified law graduate specializing in national security law who intends to pursue a law teaching career. We seek applicants who have demonstrated an aptitude for independent scholarly research, as demonstrated by their scholarly work in law school, research related to other graduate degree programs, and/or their professional activities after law school. The Fellow’s time will be spent producing significant scholarship for publication. The Fellow also will contribute to the intellectual life of the Center, by regularly contributing commentary to the Security Law Brief blog run by the Center, and will have the opportunity to take part in the Georgetown Law Fellows’ Collaborative in preparation for the academic job market. This fellowship is designed for individuals intending to go onto the academic job market within two years.

Please visit the Fellowship Page on our website for more details, including application instructions. Applications must be post-marked by Wednesday, January 2, 2013.

Contact Nadia Asancheyev (na76) with any questions.

nationalsecuritylaw forthcoming scholarship

September 24, 2012

Regulating Resort to Force: Form and Substance of the UN Charter Regime

Matthew C. Waxman

Columbia Law School
European Journal of International Law, Forthcoming, Vol. 24, 2013

Much of the international legal debate about regulating force and self-defense takes place on a substantive axis, focusing on the scope of force prohibitions and exceptions. This Article instead focuses on their doctrinal form, or modes of argumentation and analysis through which facts are assessed in relation to legal directives, to illuminate how many of the assumptions about substantive policy goals and risks tend to be coupled with other assumptions about the way international law operates in this field. It shows that the flexible, adaptable standards favored by some states, scholars, and other international actors and the fixed rules and processes favored by others reflect not only competing assessments of threats and the policy utility of force wielded beyond the Security Council’s authorization but also different sets of interlocking, foundational assumptions about international law and the conditions for its effectiveness. These include differences over how legal-doctrinal form relates to external enforcement pressures and how it generates compliance pull within states. This Article shows that exposing and prising apart some assumptions underlying doctrinal orientations – assumptions that are usually obscured or overshadowed when debates are framed in terms of substantive permissiveness versus stringency – opens and clarifies options for reforming the legal regime regulating force, and it proposes avenues of further analysis of doctrinal form in this area.

"Constructing the Threat and the Role of the Expert Witness: A Response to Aziz Rana’s Who Decides on Security?"

Connecticut Law Review, Vol. 44, No. 5, p. 1545, July 2012

WADIE E. SAID, University of South Carolina School of Law

Aziz Rana’s article presents clearly the overlooked but crucial question of “Who Decides on Security?” Namely, is determining who or what groups constitute a threat something that we are capable of making ourselves, or must we necessarily cede that authority to those in power — who supposedly have both the access to knowledge and the ability to understand it — to protect us from threats we cannot perceive? Using Rana’s historical analysis as a framework, this Article builds on his thesis to show how the wide latitude granted to the conclusions of the Executive Branch’s national security specialists in political matters has migrated into the criminal justice system. This Article focuses on the specific example of expert witnesses in federal criminal terrorism prosecutions and demonstrates that courts have been overly deferential in allowing such individuals to testify as experts. As a result, courts admit too much expert testimony of questionable methodology and reliability against defendants charged with terrorist crimes. This Article provides several examples of the phenomenon of deference to the government’s experts, as well as a focused critique of the practice of using experts to win convictions in such cases.

"Understanding When and How Domestic Courts Apply IHL"

Case Western Reserve Journal of International Law, Vol. 44, 2011
Emory Legal Studies Research Paper No. 12-200

LAURIE R. BLANK, Emory University School of Law
Email: lblank

Detention at Guantanamo, targeting of individuals with drones, use of civilians to warn the targets of military operations, use of military commissions – courts in the United States and abroad have grappled with these and other questions extensively over the past decade and more. These issues, and others that arise in the course of armed conflict and counterterrorism operations, bring the role of national courts in the implementation and enforcement of international humanitarian law into direct relief. Courts faced with wartime cases encounter two critical determinations before even reaching the merits of the case: whether to apply international humanitarian law and, if so, to what extent. The answers to those two questions will then likely have a major impact on the disposition of the case.

Any actors engaged in the implementation or enforcement of international humanitarian law – whether lawyers, military operators, political leaders or others – must have a clear understanding of how their national courts will approach cases involving international humanitarian law. This essay will analyze what factors cause courts to choose to apply – or not apply – international humanitarian law and how much of it they will apply. Knowing how the law actually applies to the facts at hand is, of course, critical to the preparation of any case, military operation, advocacy campaign or other action. In the international humanitarian law paradigm, however, this analysis must go beyond the specific substantive law. A court’s initial decision about whether to apply IHL or to what extent it applies, relative to human rights law, for example, will have a significant effect on the merits of the case. Because the process – which law and how much law – is substantively determinative, on a broad strategic level, predicting or understanding how courts will approach the legal framework as cases arise is important for effective advocacy, operational and political decision-making and long-term legal analysis.

"Cyber Security Without Cyber War"

Journal of Conflict and Security Law 2012 17: 187-209
Notre Dame Legal Studies Paper No. 12-70

MARY ELLEN O’CONNELL, Notre Dame Law School
Email: MaryEllenOConnell

Which government agency should have primary responsibility for the Internet? The USA seems to have decided this question in favour of the military — the US military today has the largest concentration of expertise and legal authority with respect to cyberspace. Those in the legal community who support this development are divided as to the appropriate legal rules to guide the military in its oversight of the Internet. Specialists on the international law on the use of force argue that with analogy and interpretation, current international law can be applied in a way that allows great freedom without sending the message that the USA is acting lawlessly when it comes to the Internet. Others reject this argument as unnecessary and potentially too restrictive. The USA need not observe international law rules, especially not with respect to the Internet. The way forward is to follow the Cold War strategy of threatening enemies with overwhelming force and preparing to act on these threats. This article also questions the application of international law on the use of force to the Internet. Rather than rejecting international law in general, however, the thesis here is that international law rules governing economic activity and communications are the relevant ones for activity on the Internet. Moving away from military analogy in general and Cold War deterrence in particular, will result in the identification and application of rules with a far better chance of keeping the Internet open and safer for all.

Preferring Order to Justice

Laura L. Rovner

University of Denver Sturm College of Law

Jeanne Theoharis

City University of New York (CUNY) – Department of Political Science
American University Law Review, Vol. 61, p. 1331, 2012

In the decade since 9/11, much has been written about the “War on Terror” and the lack of justice for people detained at Guantanamo or subjected to rendition and torture in CIA black sites. A central focus of the critique is the unreviewability of Executive branch action toward those detained and tried in military commissions. In those critiques, the federal courts are regularly celebrated for their due process and other rights protections. Yet in the past ten years, there has been little scrutiny of the hundreds of terrorism cases tried in the Article III courts and the state of the rights of people accused of terrrorism-related offenses in the federal system. The deference to assertions of national security that degraded protections for detainees at Guantanamo has similarly degraded the protections for Muslims facing terrorism charges in the federal courts. This Essay provides a close examination of one of those cases — that of Syed Fahad Hashmi — and reveals rights abridgement throughout the legal process (intrusive surveillance, vague material support charges, the use of prolonged pre-trial solitary confinement, classified evidence, the use of political activities to demonstrate mindset and intent). The federal courts have permitted such rights abridgements,largely abdicating their role as a check on Executive power and imperiling the rights of those being tried in the Article III courts.

nationalsecuritylaw fixed formatting upcoming event: IIHL advanced training program

September 22, 2012

My apologies for the last post to the list coming through garbled. Longtime listmembers know that this happens once every few months, for reasons I’ve never quite pinned down (something about UT’s server not liking the HTML in a particular message). In any event, I was trying to alert folks to the Institute for International Humanitarian Law’s upcoming (early October) IHL training program, in San Remo, Italy. Details are here:

nationalsecuritylaw upcoming event: Advanced Military Course on LOAC: 1-5 October 2012

September 22, 2012

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nationalsecuritylaw ICRC-Berkeley Survey on Teaching IHL at US Law Schools

September 20, 2012

From the folks at ICRC and UC Berkeley:

The International Committee of the Red Cross (ICRC) and UC Berkeley’s Miller Institute on Global Challenges and the Law are researching the state of international humanitarian law teaching in the U.S. In order to collect accurate data, we would very much appreciate you taking a moment to complete the following survey. This should not take more than 10 minutes.

Click here to access the survey

This survey will end on September 22.

Please feel free to forward this on to your networks.

We thank you in advance for your contribution.

nationalsecuritylaw forthcoming scholarship

September 17, 2012

Networks in Noninternational Armed Conflicts: Crossing Borders and Defining ‘Organized Armed Group’

Peter Margulies

Roger Williams University School of Law
International Legal Studies, Vol. 89, 2012
Roger Williams Univ. Legal Studies Paper No. 125

Al Qaeda’s dispersal and the rise of regional terrorist groups such as al Shabab in Somalia have raised the stakes for defining an “organized armed group” (OAG). The law of armed conflict applies to violence between OAGs. If an entity fails the OAG test, a state may use only traditional law enforcement methods in responding to the entity’s violence. A narrow definition of OAG would thus undermine the United States’ reliance on targeted killings in states like Somalia that are remote from “hot” battlefields. That result might please human rights advocates, who critique targeted killing as posing an unacceptable risk of civilian casualties. However, constraining the United States and other nations could also give carte blanche to terrorist groups.

This paper argues that both case law and social science literature support a broadly pragmatic reading of the OAG definition. While the International Criminal Tribunal for the former Yugoslavia (ICTY) has cited factors such as existence of a headquarters and imposition of discipline, ICTY decisions have found organization when evidence was at best equivocal. Moreover, terrorist organizations reveal surprisingly robust indicia of organization. To deal with the agency costs generated by personnel with disparate agendas and backgrounds, terrorist groups monitor, assess, and document performance, even when this bureaucratic turn endangers the groups’ security.

A transnational network like al Qaeda operates in a synergistic fashion with regional groups. While al Qaeda does not micromanage most individual operations, it exercises strategic influence, e.g., through a focus on targeting Western interests. When such strategic influence can be shown, the definition of OAG is sufficiently flexible to permit targeting across borders.

"The International Protection of Journalists in Times of Armed Conflict and the Campaign for a Press Emblem"

Sydney Law School Research Paper No. 12/61

EMILY CRAWFORD, University of Sydney – Faculty of Law
Email: emily.crawford

War correspondents have long been vulnerable to violence, by dint of their profession. Embedded amongst military units, or else unilaterally venturing into war zones, journalists who seek to cover events in conflict areas knowingly place themselves at risk of injury or death by their acts. The Geneva Conventions and Additional Protocol I – both of which regulate international armed conflicts – offer some protections for journalists during times of international armed conflict, but the increasingly amorphous character of twenty-first century armed conflicts has meant that journalists most often find themselves reporting on non-international armed conflicts, or conflicts that do not meet the threshold of armed conflict under international law. Recently, an international campaign, emanating from journalist advocacy organizations, has argued for the introduction of an internationally protected and recognized emblem, similar to the Red Cross emblem, as a means by which journalists can be identified as persons deserving special protection. The Press Emblem would be part of a larger convention geared towards the protection of journalists in armed conflict situations. Therefore, this article will examine the reasons behind the call for special protections, analyze and examine the current legal protections for journalists, and the perceived deficiencies of those protections, for media personnel who operate in conflict zones. This article will examine the substance of the prototype convention for the protection of journalists and analyze whether such a convention is indeed a necessary and useful addition to the law of armed conflict.

"The Law of Cyber-Attack"

California Law Review, Vol. 100, No. 4, 2012
Yale Law & Economics Research Paper No. 453
Yale Law School, Public Law Working Paper No. 258

OONA A. HATHAWAY, Yale University – Law School
Email: oona.hathaway
REBECCA CROOTOF, affiliation not provided to SSRN
Email: RLCrootof
PHILIP LEVITZ, Yale Law School
Email: philip.levitz
HALEY NIX, affiliation not provided to SSRN
Email: haley.nix
AILEEN ELIZABETH NOWLAN, Yale University – Law School
Email: aileen.nowlan
WILLIAM PERDUE, affiliation not provided to SSRN
Email: wperdue88
JULIA SPIEGEL, affiliation not provided to SSRN

Cyber-attacks have become increasingly common in recent years. Capable of shutting down nuclear centrifuges, air defense systems, and electrical grids, cyber-attacks pose a serious threat to national security. As a result, some have suggested that cyber-attacks should be treated as acts of war. Yet the attacks look little like the armed attacks that the law of war has traditionally regulated. This Article examines how existing law may be applied — and adapted and amended — to meet the distinctive challenge posed by cyber-attacks. It begins by clarifying what cyber-attacks are and how they already are regulated by existing bodies of law, including the law of war, international treaties, and domestic criminal law. This review makes clear that existing law effectively addresses only a small fraction of potential cyber-attacks. The law of war, for example, provides a useful framework for only the very small number of cyber-attacks that amount to an armed attack or that take place in the context of an ongoing armed conflict. This Article concludes that a new, comprehensive legal framework at both the domestic and international levels is needed to more effectively address cyber-attacks. The United States could strengthen its domestic law by giving domestic criminal laws addressing cyber-attacks extra-territorial effect and by adopting limited, internationally permissible countermeasures to combat cyber-attacks that do not rise to the level of armed attacks or that do not take place during an ongoing armed conflict. Yet the challenge cannot be met by domestic reforms alone. International cooperation will be essential to a truly effective legal response. New international efforts to regulate cyber-attacks must begin with agreement on the problem — which means agreement on the definition of cyber-attack, cyber-crime, and cyber-warfare. This would form the foundation for greater international cooperation on information sharing, evidence collection, and criminal prosecution of those involved in cyber-attacks — in short, for a new international law of cyber-attack.

"Train Wreck: The U.S. Violation of the Chemical Weapons Convention"

Journal of National Security Law and Policy, Forthcoming
Georgetown Public Law Research Paper No. 12-128

DAVID A. KOPLOW, Georgetown University Law Center
Email: koplow

The 1993 Chemical Weapons Convention (CWC) is one of the most important multilateral arms control instruments; it requires its 188 parties to refrain from producing, acquiring, retaining or using chemical weapons (CW) and to destroy their existing CW stockpiles by a fixed date. The United States and Russia declared the possession of the world’s largest CW inventories and have been working assiduously to incinerate, chemically neutralize or otherwise dispose of their respective caches. Unfortunately, neither country met the treaty’s April 29, 2012 final, non-extendable deadline. The United States managed to destroy 90% of its CW stocks on time, but under current projections, it will not complete the process until 2023 – more than 11 years late.

This article examines the causes of that default and analyzes its legal and policy consequences. It concludes that the United States stands in material breach of the CWC; that none of the putative legal excuses or justifications is adequate to absolve the violation; and that other parties may have recourse to remedies under the CWC, under the Vienna Convention on the Law of Treaties, or under general international law. Moreover, it concludes that the striking U.S. diplomatic success in largely finessing this issue through the CWC’s treaty implementation bodies is misguided – although it has allowed the United States to escape censure or punishment in this instance, that accomplishment deserves the true long-run U.S. interest in insisting upon the importance of strict compliance with arms control treaties and in validating the rule of international law more generally.

"Section 7 of the Charter and National Security: Rights Protection and Proportionality versus Deference and Status"

Ottawa Law Review, Vol. 42, No. 3, p. 337, 2012

KENT ROACH, University of Toronto – Faculty of Law

This paper examines section 7 jurisprudence in the context of national security cases involving collective security considerations and/or Canada’s interactions with other states on security-related matters. National security, like section 7 of the Canadian Charter of Rights and Freedoms, spans the traditional divides between administrative, criminal, extradition and international law. The paper identifies two distinct strands in the jurisprudence: one associated with rights protection and a requirement that any limits on rights be justified as proportionate, and another based on an a priori deference to governments, consideration of the status of individuals — notably non-citizens — and respect for the sovereignty of other nations. The paper concludes that despite some post-9/11 attraction to deference and status concerns, rights protection and proportionality concerns may eventually win out, especially when supported by concerns about compliance with international human rights commitments and the reconciliation of rights protection with the fulfillment of various national security goals.

nationalsecuritylaw forthcoming scholarship

September 16, 2012

Structural Constitutionalism as Counterterrorism

Aziz Z. Huq

University of Chicago Law School

California Law Review, Vol. 100, No. 4, 2012
U of Chicago, Public Law Working Paper No. 399

During the past decade, federal courts have adjudicated proliferating challenges to novel policy responses to terrorism. Judges often resolve the individual rights and statutory interpretation questions implicated in those controversies by deploying presumptions or rules of thumb derived from the Constitution’s Separation of Powers. These “structural constitutional presumptions” serve as heuristics to facilitate adjudication and to enable judicial bypass of difficult legal, policy, and factual questions. This Article challenges the use of such structural presumptions in counterterrorism cases. Drawing upon recent empirical research in political science, political psychology, and security studies, it demonstrates that abstract eighteenth-century Separation of Powers ideals do not translate into robust and empirically defensible generalizations for twenty-first-century security decisions. Structural constitutionalism thus cannot serve as a foundation for heuristics or shortcuts in the judicial consideration of new security measures. To the extent courts properly pass on the legality of counterterrorism policies, judges should rely instead on the ordinary tools of doctrine, statutory construction, and fact finding. The ensuing jurisprudence of counterterrorism would look much more like ordinary public law.

The Limits of National Security

Laura K. Donohue (Georgetown Law)

48 Am. Crim. L. Rev. (2012)

The United States’ National Security Strategy, issued in May 2010, articulates an expansion in U.S. interests that stems from the end of the Cold War. Departing from a policy of industrial growth and military containment in response to geopolitical threats, U.S. national security is now defined in terms of a wide range of potential risks that the country faces. The NSS is not alone in its rather expansive view—one that significantly departs from the perspective adopted at any point in U.S. history. It represents the fourth (and most concerning) epoch in the country’s evolution, and it is beginning to find root in the law, with serious constitutional implications.

The Article begins by considering what, exactly, is meant by “national security.” It posits a Hamiltonian definition: laws and policies directed at protecting the national government in its efforts to aid in the common defense, preserve public peace, repel external attacks, regulate commerce, and engage in foreign relations. It turns then to the Founding and suggests that the first epoch was marked, primarily, by the drive to Union and, secondarily, by the goals of establishing international independence and building the country’s economic strength. The Civil War represented a reversion to Union as the core of American security, with recourse to international independence and economic growth following Confederate defeat. The Spanish-American War brought the first epoch to a close, leading to the second, in which U.S. national security expanded to include a formative agenda in the global environment. The country would no longer be content with merely reacting to international developments; it would seek to shape the international arena. Domestically, the federal government sought to limit the rapidly expanding power of private sources of power, particularly corporate entities. Tensions between the goals of the first age and those of the second resulted in power struggles between the federal branches of government. During the third epoch, national security became the United States’ overriding interest, rendering all other concerns subservient. The economy, education, housing, health care, and civil rights came to be seen through a new lens, gaining for national security a privileged position. This third epoch began not with World War I or World War II (common markers in studies of U.S. foreign affairs), but with the rise of totalitarianism in the 1930s. World War II narrowed the focus to one form of threat—communism, while during the Cold War containment of the Soviet Union became the overriding goal. Resistance involved a combination of military engagement and humanitarian aid to countries resisting communist influence and, at a domestic level, the integration of industry, science, and political institutions. Strides in the domestic civil rights arena also became an important response to Soviet allegations of democratic injustice.

The fourth, and most recent, epoch emerged with the fall of the Berlin Wall. National security now dominates, making it the most powerful institutional engine. Risks, broadly defined, have been folded into the framework, with emphasis now placed on the effects that may result should anticipated risks become manifest. As a result, areas out­­side the traditional framework, such as climate change, public health, drugs, and criminal law, have been drawn into the national security infrastructure. Executive branch authorities in regard to each of these areas have rapidly expanded, raising a number of constitutional concerns.

Binding the Executive (by Law or by Politics)

Aziz Z. Huq

University of Chicago Law School
University of Chicago Law Review, Vol. 79, No. 2, 2012
U of Chicago, Public Law Working Paper No. 400

What in practice limits executive branch discretion? In The Executive Unbound: After the Madisonian Republic, Eric Posner and Adrian Vermeule reject “liberal legalism,” which situates constraint in the power of law and legally constituted institutions such as Congress and the courts. In their view, it is political, not legal, mechanisms that cabin executive discretion on the ground. This review essay examines critically both parts of that positive thesis — the weakness of law and the force of politics — as a vehicle for reconsidering the operation of presidential discretion. The essay identifies a more subtle but fragile political economy of constraint: Legal and political mechanisms are not substitutes, but complementary elements of an increasingly threadbare dynamic of executive restraint. This reformulation also has troubling normative implications for evaluations of the current scope of executive discretion.

"Technological Leap, Statutory Gap, and Constitutional Abyss: Remote Biometric Identification Comes of Age"

Minnesota Law Review, Forthcoming
Georgetown Public Law Research Paper No. 12-123

LAURA DONOHUE, Georgetown University Law Center
Email: lkdonohue

Federal interest in using facial recognition technology (“FRT”) to collect, analyze, and use biometric information is rapidly growing. Despite the swift movement of agencies and contractors into this realm, however, Congress has been virtually silent on the current and potential uses of FRT. No laws directly address facial recognition — much less the pairing of facial recognition with video surveillance — in criminal law. Limits placed on the collection of personally identifiable information, moreover, do not apply. The absence of a statutory framework is a cause for concern. FRT represents the first of a series of next generation biometrics, such as hand geometry, iris, vascular patterns, hormones, and gait, which, when paired with surveillance of public space, give rise to novel questions of law and policy.

These technologies constitute what can be termed Remote Biometric Identification (“RBI”). That is, they give the government the ability to ascertain the identity (1) of multiple people, (2) at a distance, (3) in public space, (4) absent notice and consent, and (5) in a continuous and on-going manner. RBI fundamentally differs from what can be understood as Immediate Biometric Identification (“IBI”) — i.e., the use of biometrics to determine identity at the point of arrest, following conviction, or in conjunction with access to secure facilities. IBI, in contrast, tends to be focused (1) on a single individual, (2) close-up, (3) in relation either to custodial detention or in the context of a specific physical area related to government activity, (4) in a manner often involving notice and often consent, and (5) is a one-time or limited occurrence. The types of legal and policy questions raised by RBI significantly differ from those accompanying IBI.

In the absence of a statutory framework, we are driven to Constitutional considerations, where the Court’s jurisprudence proves inadequate as a way of addressing the concerns that present in the realm of RBI. The Fourth Amendment’s guarantee to protection against unreasonable search and seizure and the probable cause requirement for the issuance of warrants; the Fifth Amendment’s right against self-incrimination; the First Amendment’s protection of speech and assembly; and the Fifth and Fourteenth Amendments’ due process protections fail to account for the way in which such measures fundamentally challenge the current norms. The article calls for Congressional action and a judicial framing commensurate with the threat posed by these new and emerging technologies.

nationalsecuritylaw upcoming event at Fordham Law on 9/27

September 16, 2012

Great even at Fordham on the 27th. Please see attached.

Terrorism Past and Future invite-2.pdf

nationalsecuritylaw Salah v. Dep’t of Treasury (N.D. Ill. Sept. 5, 2012) (complaint and supporting exhibits)

September 11, 2012

The Center for Constitutional Rights has filed a civil suit challenging the constitutionality of the sanctions system implemented by OFAC as applied to a U.S. citizen. The complaint and supporting exhibits are attached.

Salah Filed Exhibits 12-7067.pdf

Salah Filed Complaint 12-7067.pdf