nationalsecuritylaw forthcoming scholarship

Extending Positive Identification from Persons to Places: Terrorism, Armed Conflict and the Identification of Military Objectives

Laurie R. Blank

Emory University School of Law
Utah Law Review, 2013, Forthcoming

This Article addresses the identification of military objectives in a variety of non-international armed conflict contexts, including conflicts with terrorist groups operating transnationally and conflicts with non-state actors located outside the state’s borders. In particular, the nature of non-international armed conflict can alter how the basic definition and analysis of the term "military objective" is applied. To the extent that the application of the definition of military objectives in non-international armed conflicts introduces complications and conceptual challenges that blur the lines between civilian and military, and exacerbate existing difficulties, it is important to tease out and better understand those conceptual challenges. Building on foundational discussions of the law of targeting and the definition of military objective as set out in Additional Protocol I and customary international law, this Article analyzes the legal and operational complexities of identifying military objectives in non-international armed conflicts. The first question centers on the meaning of the criterion of "nature" and whether it is substantially narrower in the identification of military objectives on the non-state actor side of the conflict. A second major question concerns dual-use objects — does the nature of non-international armed conflict result in nearly all objects being dual-use objects? Finally, this Article explores the ramifications of cross-border and transnational conflicts in particular for jus ad bellum and operational considerations as well in applying and interpreting the definition of military objectives.

Learning to Live with (a Little) Uncertainty: The Operational Aspects and Consequences of the Geography of Conflict Debate

Laurie R. Blank

Emory University School of Law
161 University of Pennsylvania Law Review Online (2013)

This Essay, written as a response to Professor Jennifer Daskal’s thought-provoking article on the geography of the battlefield, addresses the debate over the geographical parameters of armed conflict through a focus on the operational consequences of efforts to draw geographical lines setting the parameters of conflict.The question of geographical application of LOAC is both highly relevant in the most pragmatic sense – the difference between being in an area of armed conflict or not can literally be life or death – and also not susceptible to specific and concrete definition. This combination of relevance and thorniness has led not only to extensive debates about how to conceptualize the geographic parameters of the battlespace in an armed conflict but also to alternative paradigms for regulating the use of force through rules-based frameworks, hybrid paradigms or other mechanisms. This essay highlights two primary concerns as a counterpoint to the idea of a new set of rules based on shifting geographical combat zones, even in light of the potential procedural benefits such new rules and frameworks might engender: 1) how the lack of strategic clarity trickles down to affect operational and tactical clarity, and 2) the long-term consequences for the development and implementation of the law of armed conflict.

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.

"Ungoverned Spaces, Transnational Crime, and the Prohibition on Extraterritorial Enforcement Jurisdiction in International Law"

DAN E. STIGALL, U.S. Department of Justice, Office of International Affairs
3 Notre Dame J. Int’l & Comp. L. 1 (2013)

Driven by internationalization efforts such as those that accompanied the global efforts to combat the illicit drug trade, international law enforcement efforts by the United States have developed markedly over the past few decades. A notable element of this phenomenon has been the increased need by domestic law enforcement agencies to conduct extraterritorial law enforcement operations. This is especially so in "ungoverned spaces" — areas of the world where there is no governmental counterpart willing or able to take action. The U.S. response to transnational crime has, however, frequently taken on the characteristics of military action — a trend that has worried policy makers and senior military officials.

A resort to military assets can be practical on multiple levels. But aside from the myriad practicalities which ordinarily compel national leaders to resort to the most capable organ of state power when difficult situations arise, there are also compelling international legal considerations that make the use of military force an even more tempting option when dealing with the unique challenges posed by transnational criminals operating outside the United States. In fact, as this Article demonstrates, the use of military force may frequently be the only option legally permissible under the current state of international law. This stems from a dramatic dichotomy in international law that tightly constrains the range of conduct permitted during extraterritorial civilian law enforcement operations while granting the military (in certain circumstances) wide latitude to carry out an almost unlimited range of invasive and even lethal activity.

This Article explicates the international legal rules governing the exercise of extraterritorial enforcement jurisdiction by civilian law enforcement agents. In so doing, the Article reviews the various legal bases under which civilian law enforcement agents may operate abroad, including treaty-based authorities such as the historic capitulatory regime, more modern Status of Forces Agreements (SOFAs), and various operations undertaken pursuant to the consent of the host nation. The Article contrasts the limits placed on extraterritorial activity by law enforcement agents to the more extensive activities permitted to military actors under the Law of Armed Conflict (LOAC).

The Article posits that the international legal strictures on unilateral law enforcement activity are, in part, responsible for the militarized approaches to transnational crime which have become a cause of concern for both senior military leaders and human rights advocates. Accordingly the Article advocates for greater latitude under international law. To that end, the trend of militarization in the U.S. approach to transnational crime could be reversed to a degree if international law recognized a greater degree of flexibility for certain limited categories of extraterritorial law enforcement actions by civilian actors. It is argued that permitting such an exception would simultaneously promote 1) policies of refocusing the military on war-fighting by limiting its role in combating transnational crime and 2) rights-based approaches and government transparency by addressing transnational criminality in a way that comports with constitutional due process and international human rights norms.

"When Deference is Dangerous: The Judicial Role in Material-Witness Detentions"

American Criminal Law Review, Vol. 49, No. 3, 2012

LAURYN P. GOULDIN, Syracuse University College of Law

Federal prosecutors’ aggressive use of the Material Witness Statute to detain scores of potential terrorism suspects during the decade following 9/11 has been well established by scholars and human rights groups. Details about these detentions have also emerged in criminal and civil litigation, including Ashcroft v. al-Kidd, the first case challenging the government’s witness detention practices to reach the Supreme Court.

This Article posits that the fixation in the literature (and in lawsuits like al-Kidd) on prosecutors’ allegedly pretextual use of the statute has overshadowed the complicity of the judiciary in authorizing these arrests and detentions. The provisions of the Material Witness Statute – and its relationship to the contempt power – make clear that, despite prosecutors’ efforts to co-opt the statute as a law enforcement tool, the authority to arrest and detain material witnesses is a judicial power. As such, the factors that prompted judicial acquiescence in these cases require greater scrutiny.

Judges who signed material-witness arrest warrants repeatedly departed from longstanding precedents that defined flight risk in the material-witness and bail contexts. Despite the fact that material-witness detentions should not involve considerations of dangerousness, many of these witnesses were incarcerated for weeks or even months in highly secure facilities pursuant to protocols reserved for the most dangerous pretrial detainees.

This Article considers two factors that may have influenced these judicial decisions: cognitive biases and excessive pressure to defer to the executive branch. These cases offer an opportunity to evaluate claims made by scholars in the ongoing debate about the degree to which judges do and should defer to prosecutors in cases implicating national security interests. Finally, this Article outlines preliminary proposals intended to reinvigorate the judiciary as a meaningful check in material-witness cases and more broadly in the criminal justice system.

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