nationalsecuritylaw forthcoming scholarship

As many of you probably noticed, I’ve been lax about circulating forthcoming scholarship for quite a while. My apologies for that. I’ve assembled a series of new posts on this score, hopefully accounting for everyone who has sent me stuff recently. If after a few days you see that I’ve missed something you sent, please accept my additional apologies, and remind me by resending the item. Thanks!

"Interpretation Catalysts and Executive Branch Legal Decisionmaking"

Yale Journal of International Law, Vol. 38, 2013

REBECCA INGBER, Columbia University – Law School
Email: rebecca.ingber

Recent years have seen much speculation over executive branch legal interpretation and internal decisionmaking, particularly in matters of national security and international law. Debate persists over how and why the executive arrives at particular understandings of its legal constraints, the extent to which the positions taken by one presidential administration may bind the next, and, indeed, the extent to which the President is constrained by law at all. Current scholarship focuses on rational, political, and structural arguments to explain executive actions and legal positioning, but it has yet to take account of the diverse ways in which legal questions arise for the executive branch, which have a significant effect on executive decisionmaking.

This Article adds necessary texture to these debates by identifying and exploring the role of distinct triggers for legal interpretation – which this Article terms “interpretation catalysts” – in driving and shaping executive branch decisionmaking, particularly at the intersection of national security and international law. Interpretation catalysts impel the executive to consider, crystallize and potentially assert a legal interpretation of its obligations under domestic or international law on a particular matter, and they can both impede and facilitate change within the executive. Examples of interpretation catalysts include such diverse triggering events as decisions whether to use force against an armed group; lawsuits filed against the U.S. government; obligatory reports to human rights treaty bodies; and even the act of speechmaking. Each of these unique catalysts triggers a distinct process for legal decisionmaking within the executive, and is instrumental in framing the task at hand, shaping the process engaged to arrive at the substantive decision, establishing the relative influence of the actors who will decide the matter, and informing the contextual pressures and interests that may bear on the decision, and thus shapes the ultimate substantive position itself. These distinct mechanisms for decisionmaking each carry their own individual pressures and biases; thus in laying bare the interpretation catalysts phenomenon, this Article demonstrates potential avenues for actors inside and external to the executive branch to predict, to explain, and even to affect executive decisionmaking. This Article will explore the effect of interpretation catalysts on executive legal interpretation, and address some of the implications of this phenomenon for scholars, private actors, courts, and executive branch officials.

Aspects of Leadership: Ethics, Law and Spirituality

Carroll Connelley and Paolo Tripodi (editors)

Marine Corps University Press

The Aspects of Leadership: Ethics, Law and Spirituality is a blended collection of scholarly works that address issues in the area of ethics, law and spirituality that affect military leaders at all levels. This book was created to provide Professional Military Educational institutions and the operating forces a resource of thought provoking material on the challenging ethical and legal considerations facing Marine leaders today. This project was inspired by the Commandant of the Marine Corps General Amos who in his planning guidance told the Corps that we must "better educate and train our Marines to succeed in distributed operations and increasingly complex environments." With that in mind, the editors of this work gathered 20 academic and military professionals to provide their reflections on their area of expertise to create a coherent volume with true value for the military practitioner.

Contents:

Introduction / Carroll Connelley — ETHICS: Leadership, ethics and culture in COIN operations: case examples from Marjeh, Afghanistan / Brian Christmas and Paula Holmes-Eber ; Ethics and irregular warfare: the role of the stakeholder theory and care ethics / Geoffroy Murat ; A pedagogy of practical military ethics / Clinton A. Culp ; Leadership in a world of blurred responsibilities / Emmanuel R. Goffi ; When loyalty to comrades conflicts with military duty / J. Peter Bradley ; Leadership and the ethics of dissent: reflections from the Holocaust / Paolo Tripodi ; Enacting a culture of ethical leadership: command and control as unifying mind / Clyde Croswell and Dan Yaroslaski — LAW: Training the rules of engagement for the counterinsurgency fight / Winston Williams ; Rules of engagement: law, strategy, and leadership / Laurie R. Blank ; Humanity in War: leading by example; the role of the Commander in modern warfare / Jamie A. Williamson ; Agency of Risk: the balance between protecting military forces and the civilian population / Chris Jenks ; Accountability or impunity: rules and limits of command responsibility / Kenneth Hobbs — SPIRITUALITY: Spiritual injuries: wounds of the American warrior on the Battlefield of the Soul / David Gibson and Judy Malana ; Soldier spirituality in a combat zone: preliminary findings / Franklin Eric Wester ; The spiritual as nexus for the ethical and legal / Jeffrey S. Wilson ; The religious factor in military leadership / Paula Otis ; Spiritual leadership in the battle space: Who is in charge? A personal essay / Arnold Fields.

Reconceptualizing Federal Courts in the War on Terror

Jonathan Hafetz

Seton Hall Law School
St. Louis University Law Journal, Vol. 56, 2012

Since 9/11, the United States has created a framework that allows for indefinite detention under the law of war and prosecution in military commissions as alternatives to charging terrorism suspects in federal court. These alternatives have affected how federal courts are represented and perceived. Proponents of using federal courts, for example, increasingly emphasize their toughness as a way of demonstrating their continued viability as a forum for terrorism prosecutions. At the same time, federal courts are criticized for risking disclosure of classified or other sensitive information, infringing on executive prerogatives, and undermining military and intelligence operations. These criticisms have not only helped legitimize military alternatives to federal criminal prosecution for the long-term incapacitation of terrorism suspects; they have also supplied justifications for denying civil litigants – particularly, victims of torture, arbitrary detention, and other forms of mistreatment – a judicial remedy and for dismissing legal challenges to controversial government programs under various justiciability doctrines.

This Article explores how Guantánamo and the war on terror more generally have altered the perception and operation of federal courts. Part I describes the growth after 9/11 of a new type of military detention system that provides an alternative to Article III-court prosecutions of terrorism suspects. Part II examines how this parallel military detention system has affected the way federal courts are defined and represented as a forum for terrorism prosecutions. Part III looks at federal courts from the perspective of their role in providing a forum for plaintiffs seeking redress for torture, unlawful detention, and related abuses. It describes how many of the same reasons cited in opposition of federal criminal prosecution of terrorism suspects are invoked – often by federal judges themselves – to prevent federal court adjudication of civil damages litigation arising out of government misconduct during counterterrorism operations. Part IV examines federal courts from another vantage point, describing their engagement with the new, post-9/11 military detention system through the exercise of habeas corpus jurisdiction. Here, federal courts have performed two, inter-related functions: first, articulating general rules and principles to govern military detention and trial, and second, acting as quasi national security courts by reviewing the validity of individual prisoners’ military confinement. While federal courts have imposed some constraints on the government’s ability to hold terrorism suspects outside the criminal justice system, they have largely accommodated the new forms of military detention that emerged after 9/11 under the rubric of the war on terrorism and have shown considerable deference to the government’s allegations in individual cases.

Alone in a Sea of Voices: Recognizing a New Form of Isolation Through Language Barriers

Peter Jan Honigsberg

University of San Francisco – School of Law

Sixteen-year old Uzbek, Sunnat (not his real name), was seized in Afghanistan following the attacks on September 11, 2001. He was transported to the detention center in Guantanamo Bay, Cuba in 2002. Despite being cleared for release, Sunnat waited eight years to find a country that would take him.

Sunnat was placed in a cell among other detainees in the general prison population. He spoke neither Arabic nor English, the lingua francas of the prison and the only languages spoken by the detainees in neighboring cells. Consequently, for much of his time in Guantanamo he talked to no one. He awoke each morning and cried. Sunnat could, of course, reach out and communicate through eye contact, hand signs and facial expressions. However, Sunnat never meaningfully communicated with his neighbors. Absence of meaningful human contact is a characteristic of isolation and a source of suffering caused by isolation. Sunnat suffered a new and unique form of isolation, known as "Isolation by language barriers."

In this article, I use Sunnat’s story as a lens through which to see how isolation by language barriers is a form of isolation that warrants special attention in the detention context. Similar to other forms of isolation, isolation by language barriers may rise to the level of torture or cruel, inhuman or degrading treatment, or CID. Academic literature on isolation, including literature in the social sciences and international fields, has only cursorily acknowledged the experience of being isolated by language in detention, and has not identified the experience as a distinct type of isolation. Consequently, this essay is original work.

In comparing isolation by language barriers to other forms of isolation, this article will also create a framework where isolation by language barriers is recognized as a distinct form of isolation similar to solitary confinement, incommunicado detention and administrative segregation. In addition, the article will identify circumstances outside Guantanamo where isolation by language barriers also exists, such as in immigration and asylum detention centers. The article concludes with suggestions for remedying situations of isolation by language barriers.

Gender, National Security, and Counter-Terrorism: Human rights perspectives

Edited by Margaret L. Satterthwaite, Jayne Huckerby

Published December 21st 2012 by Routledge – 288 pages

In the name of fighting terrorism, countries have been invaded; wars have been waged; people have been detained, rendered and tortured; and campaigns for "hearts and minds" have been unleashed. Human rights analyses of the counter-terrorism measures implemented in the aftermath of 11 September 2001 have assumed that men suffer the most—both numerically and in terms of the nature of rights violations endured. This assumption has obscured the ways that women, men, and sexual minorities experience counter-terrorism. By integrating gender into a human rights analysis of counter-terrorism—and human rights into a gendered analysis of counter-terrorism—this volume aims to reverse this trend. Through this variegated human rights lens, the authors in this volume identify the spectrum and nature of rights violations arising in the context of gendered counter-terrorism and national security practices. Introduced with a foreword by Martin Scheinin, former UN Special Rapporteur on Human Rights and Counter-Terrorism, the volume examines a wide range of gendered impacts of counter-terrorism measures that have not been theorized in the leading texts on terrorism, counter-terrorism, national security, and human rights. Gender, National Security and Counter-Terrorism will be of particular interest to scholars and students in the disciplines of Law, Security Studies and Gender Studies.

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