nationalsecuritylaw forthcoming scholarship

The Harvard National Security Journal has just published the first issue of its fourth volume, chock full of interesting papers from list members I’m happy to say:

Notes on a Terrorism Trial – Preventive Prosecution, “Material Support” and The Role of The Judge after United States v. Mehanna
4 Harv. Nat’l Sec. J. 1 (2012)
By George D. Brown, Boston College Law School

The terrorism trial of Tarek Mehanna, primarily for charges of providing “material support” to terrorism, presented elements of a preventive prosecution as well as the problem of applying Holder v. Humanitarian Law Project (HLP) to terrorism-related speech. This Article examines both aspects of the case, with emphasis on the central role of the trial judge. As criminal activity becomes more amorphous, the jury looks to the judge for guidance. His rulings on potentially prejudicial evidence—which may show just how much of a “terrorist” the defendant is—are the key aspect of this guidance. If the defendant is found guilty, the sentence imposed by the judge can have a profound impact on future preventive prosecutions, particularly the judge’s handling of the Sentencing Guidelines’ “Terrorism Enhancement.”

Terrorism Prosecutions in U.S. Federal Court: Exceptions to Constitutional Evidence Rules and the Development of a Cabined Exception for Coerced Confessions
4 Harv. Nat’l Sec. J. 58 (2012)
By Norman Abrams, UCLA Law School

This Article examines a series of special constitutional evidence rules that can be used in criminal enforcement against terrorists. Some of these rules already expressly apply to terrorism cases, others contain an exigent circumstance element that can and, it is recommended, should be adapted to terrorism contexts. Finally, building on both of these sets of special rules, it is proposed that a similar new exception should be applied to coerced confession rules. Specifically, in Part I, four existing “exceptions” to constitutional rules of evidentiary admissibility are examined—relating to Fourth Amendment privacy protections, compulsory process, confrontation, and Miranda. The first two of these exceptions were originally formulated in the context of terrorism investigations; the second two were developed in situations involving exigent circumstance and public safety concerns. This Article endorses the extension to terrorism investigations of the public safety exception to the requirement of Miranda warnings. (Along the same lines, recently-made-public FBI guidelines have adapted this exception for use in interrogating suspected terrorists.) It is also proposed that the public safety exception—dealing with confrontation issues—should be extended to terrorism investigations.

Part II, building on the described existing and proposed terrorism investigation exceptions, makes the case for the creation of a new exception relating to a fifth constitutional admissibility doctrine, one involving a hallowed area of constitutional criminal procedure—coerced confessions. A cabined exception is proposed that would, in exigent circumstances and to gather intelligence relevant to terrorism prevention, allow government agents to utilize non-extreme police interrogation methods, the use of which, under existing Supreme Court precedents, might otherwise have been ruled to violate the Constitution.

Preventing Terrorist Attacks on Offshore Platforms: Do States Have Sufficient Legal Tools?
4 Harv. Nat’l Sec. J. 131 (2012)
By Assaf Harel, Major, Israel Defense Forces. Presently serving as a legal advisor in the Military Advocate General’s Corps.

This Article examines what authority coastal states have under international law to protect their offshore platforms from the dire consequences of such attacks. It argues that while states have sufficient legal authority to take measures for protecting offshore platforms located in their territorial sea, they lack such authority outside that area. In particular, this Article addresses the authority given to states in the 1982 United Nations Convention on the Law of the Sea (LOSC) to restrict navigation within 500-meter-wide safety zones around offshore platforms located in the exclusive economic zone (EEZ) or on the continental shelf. In this regard, this Article argues that not only are such safety zones insufficient for protecting platforms from deliberate attacks, but they also seem to be insufficient for protecting those platforms from safety hazards.

National Security Interest Convergence

4 Harv. Nat’l Sec. J. 185 (2012)
By Sudha Setty, Western New England University School of Law

Over a decade after the attacks of September 11, 2001, lawmakers, scholars, activists, and policy makers continue to confront the questions of whether and to what extent robust counterterrorism laws and policies should be reined in to protect against the abuse of civil rights and the marginalization of outsider groups. This Article uses political and critical race theory to identify areas of national security interest convergence in which political will can be marshaled to limit some national security policies.

Legislators act in their political self-interest—both in terms of responding to party forces and constituents—in casting votes that often give primacy to national security interests at the expense of civil liberties. Actions taken by legislators which are rights-protective in the national security context are largely predictable when understood as effects of both political realities and interest convergence theory. Lawmakers often will not act on the basis of civil liberties concerns, but will implement rights-protective measures only because those measures serve another interest more palatable to mainstream constituencies.

Although unmooring from deontological grounding creates numerous limitations as to how many rights-protective measures can be implemented on a long-term basis, interest convergence offers a limited opportunity for lawmakers and policy experts to leverage self-interest and create single-issue coalitions that can protect the rights of outsider groups abused by current national security policies.

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