nationalsecuritylaw forthcoming scholarship

January 12, 2013

"Executive Branch Legalisms"

124 Harvard Law Review Forum 21 (2012)DAVID FONTANA, George Washington University Law School

The Office of Legal Counsel (OLC) and White House Counsel’s Office (WHC) have both been the subject of much recent attention in legal scholarship, and both offices are at the center of the debate between Bruce Ackerman and Trevor Morrison that this paper addresses. However, these offices remain less representative of and less important to executive branch legalism than the substantial amount of attention these offices are receiving suggests. These offices matter, and matter more than any other individual legal office in the executive branch. However, there are limitations in using these two offices as a means of understanding the executive branch’s legal operations more generally.

Executive branch lawyering is still overwhelmingly lawyering by civil service lawyers who are not appointed by the President or substantially affected by the lawyers that the President appoints. In other words, the law created and shaped by civil service lawyers — what I call “civil service legalism” — is a crucial but increasingly unappreciated part of the legal presidency (and different than the law created and shaped by the more “political lawyers” in OLC and WHC). In particular, there are differences between OLC/WHC and the large majority of other legal offices in the executive branch in terms of their legal personnel: how do these lawyers come to work in the executive branch, and what are their incentives once they are working there? The executive branch is a “‘they," not an "it,’” and so too executive branch legality is more accurately described as executive branch legalisms — a plural and not a singular, with some important implications for our understanding of separation of powers.

The Counterinsurgent’s Constitution: Law in the Age of Small Wars

Oxford University Press

Ganesh Sitaraman (Vanderbilt)

Since the "surge" in Iraq in 2006, counterinsurgency effectively became America’s dominant approach for fighting wars. Yet many of the major controversies and debates surrounding counterinsurgency have turned not on military questions but on legal ones: Who can the military attack with drones? Is the occupation of Iraq legitimate? What tradeoffs should the military make between self-protection and civilian casualties? What is the right framework for negotiating with the Taliban? How can we build the rule of law in Afghanistan?

The Counterinsurgent’s Constitution tackles this wide range of legal issues from the vantage point of counterinsurgency strategy. Ganesh Sitaraman explains why law matters in counterinsurgency: how it operates on the ground and how law and counterinsurgency strategy can be better integrated. Counterinsurgency, Sitaraman notes, focuses on winning over the population, providing essential services, building political and legal institutions, and fostering economic development. So, unlike in conventional war, where law places humanitarian restraints on combat, law and counterinsurgency are well aligned and reinforce one another. Indeed, following the law and building the rule of law is not just the right thing to do, it is strategically beneficial. Moreover, reconciliation with enemies can both help to end the conflict and preserve the possibility of justice for war crimes. Following the rule of law is an important element of success.

The first book on law and counterinsurgency strategy, The Counterinsurgent’s Constitution seamlessly integrates law and military strategy to illuminate some of the most pressing issues in warfare and the transition from war to peace. Its lessons also apply to conflicts in Libya and other hot-spots in the Middle East.

"Judicial Review for Enemy Fighters: The Court’s Fateful Turn in Ex Parte Quirin, the Nazi Saboteur Case"

Vanderbilt Law Review, Vol. 66, p. 101, 2013
ANDREW KENT, Fordham University School of Law

The last decade has seen intense disputes about whether alleged terrorists captured during the nontraditional post-9/11 conflict with al Qaeda and affiliated groups may use habeas corpus to challenge their military detention or military trials. It is time to take a step back from 9/11 and begin to evaluate the enemy combatant legal regime on a broader, more systemic basis, and to understand its application to future conflicts. A leading precedent ripe for reconsideration is Ex parte Quirin, a World War II-era case in which the Supreme Court held that saboteurs admittedly employed by an enemy nation’s military had a right to access civilian courts during wartime to challenge their trial before a military commission. Even though admitted members of an enemy nation’s military had never before accessed the civilian justice system during wartime, the Court in Quirin declined to explain why it reversed course in such a significant fashion. Since and because of Quirin, it has become accepted that literally any individual present in the United States has a constitutional right to habeas corpus.

This Article first shows that on the legal merits, the Quirin Court’s ruling on court access was erroneous. The history of lack of court access for enemy fighters and nonresident enemy aliens is reviewed, starting with the English common law background on which the U.S. Constitution was written and continuing through the Founding period to the Civil War, World War I, and beyond. Second, the Article seeks to explain why the Court acted in such a surprising fashion in Quirin — ruling in favor of unsympathetic enemies during wartime, even though case law and other legal authorities provided solid reasons to reject their plea for court access. To do so, the Article draws on a diverse set of explanatory tools, including those of legal history and political science. Next, the Article shows that Quirin’s rejection of the old framework governing court access for enemy fighters and nonresident enemy aliens has had profound but underappreciated doctrinal consequences — including helping lead to the result in Boumediene v. Bush. The Article then argues that, as a policy matter, admitted or otherwise undisputed combatants in an enemy nation’s employ do not need and probably should not have a right to access U.S. courts during wartime. Quirin was thus wrong on the law and highly problematic as policy. Finally, the Conclusion highlights both current and potential future situations in which the Article’s legal analysis could be important.

"A Strategic Imperative: Legal Representation of Unprivileged Enemy Belligerents in Status Determination Proceedings"

11 Santa Clara Journal of International Law 195 (2012)

KRISTINE A. HUSKEY, Georgetown University Law Center, Physicians for Human Rights

In the ongoing “war against terrorism,” the United States has been detaining thousands of individuals without charge or trial until “the end of hostilities.” Should these individuals receive legal counsel during military administrative proceedings, which may result in long-term, if not lifelong, deprivation of liberty?

This article addresses the thorny question of why due process and, specifically, legal representation, is critical in the status determination hearings of detainees in U.S. military custody at the Bagram Theater Internment Facility. As a preliminary matter, one must recognize that the authority for preventive indefinite detention as proffered by Hamdi v. Rumsfeld may be reaching its limit given the realities in the current U.S. conflict against Al-Qaeda and affiliated groups. Factors, such as the lack of temporal and geographical boundaries, and the fact that the “enemy” is stateless and dressed as a civilian, argue that the “understanding” of preventive detention under traditional laws of war by the Hamdi Court has unraveled. This creates the need for more, not less, due process in status determination proceedings, as well as questions the authority to indefinitely detain such individuals.

Second, the Boumediene Court’s discussion of Eisentrager and its heavy criticism of the Combatant Status Review Tribunals (CSRTs) highlight the need for counsel and an adversarial process to better achieve accurate status determinations of people picked up in the “war against terrorism.” Further, a comparison of the practical concerns and challenges in the Bagram status determination hearings to those in the CSRTs reveal that while the Bagram process has improved, it has not gone far enough.

In conclusion, both the rationale underlying counsel as fundamental to due process and the practical circumstances involved in the “war against terrorism” combine to make legal representation a strategic imperative in status determinations of detainees.

This paper was originally presented as a response to Geoffrey Corn and Peter Chickris’ article, "Unprivileged Belligerents, Preventive Detention, and Fundamental Fairness: Rethinking the Review Tribunal Representation Model," at the symposium, "Emerging Issues in International Humanitarian Law," sponsored by Santa Clara University Law School.