nationalsecuritylaw 21st Annual National Security Law Institute (UVA, June 2-14)

April 4, 2013

Training opportunity: The 21st Annual National Security Law Institute (UVA, June 2-14)

Every year I try to draw particular attention to this terrific event, and for good reason: it is a wonderful occasion to take a deep dive into an array of topics that will interest any member of the listserv, in the company of an invariably-fascinating group of fellow participants from all sorts of professional and national backgrounds. Please note that this is not just for law professors: government officials, professors from other disciplines, all sorts of other profiles are typically there as well. More information appears below (full disclosure: I am one of the folks who lectures as part of this institute):

1

Center for National Security Law

University of Virginia School of Law

Charlottesville, VA 22903

SPACES STILL AVAILABLE FOR

21ST NATIONAL SECURITY LAW INSTITUTE

(June 2-14, 2013)

The Center for National Security Law at the University of Virginia School of Law announces that there are still spaces available for the 21st National Security Law Institute, a highly regarded, two-week training program that will be held at the Law School in Charlottesville from Sunday, June 2, until Friday, June 14. The Institute is open to professors of law and related disciplines, as well as to government attorneys with national security law responsibilities. Professors and attorneys from foreign nations on six continents have taken part in the Institute since it was founded in 1991.

A distinguished group of national security professionals will again provide instruction during the program, including:

Ø Former Director of Central Intelligence, the Honorable R. James Woolsey;

Ø Former National Security Council Legal Adviser and currently Chief Judge of the U.S. Court of Appeals for the Armed Services, the Honorable James E. Baker;

Ø Former National Security Agency General Counsel and Assistant Secretary for Homeland Security Policy, the Honorable Stewart Baker;

Ø Former Deputy Judge Advocate General of the Air Force and currently Director of the Center on Law, Ethics, and National Security at Duke University School of Law, Major General Charles Dunlap;

Ø The Legal Counsel to the Chairman of the Joint Chiefs of Staff, Brigadier General Richard C. Gross;

Ø The founder of the academic discipline of National Security Law, who has been teaching the subject since 1969, Professor John Norton Moore;

Ø Former Acting General Counsel of the Central Intelligence Agency, John Rizzo;

Ø The Charles I. Francis Professor in Law at the University of Texas School of Law, Robert M. Chesney;

Ø Georgetown Law Center Professor Laura Donohue, of the Center for National Security and Law;

Ø Many other leading authorities from the academic community, and/or with backgrounds in the Pentagon, the FBI, the Army Judge Advocate General’s Legal Center and School, the Naval War College, and elsewhere.

This summer’s Institute will include an enhanced emphasis on cyber issues, along with the more traditional coverage of war and peace theory, the constitutional separation of national security powers, intelligence community law, domestic and international terrorism, international organized crime, the law of war (jus ad bellum and jus in bello), war crimes, piracy, treaty powers, and many other subjects.

For further information about the Institute, visit the Institute’s web page at:

http://www.virginia.edu/cnsl/nsli.html

or contact the Center at:

Center for National Security Law

University of Virginia School of Law

580 Massie Road

Charlottesville, VA 22903-1738

email: cnsl

(434) 924-4083

fax: (434) 924-7362

________

Description: 16th NSLI-MG Dunlap*** 964“The University of Virginia’s Center for National Security Law stands as one of the Nation’s premier institutes of its kind, not just because of its exceptional academic excellence, but also because of the unique way it connects practitioners, academics, and scholars from other disciplines, particularly through its National Security Law Institute. It has made a huge difference in my career, and I know the same can be said of several generations of national security law devotees of every kind. It is a very special national asset that has made enormous contributions to the field, and it well deserves the highest accolades on its accomplishments.”

Maj. Gen. Charles Dunlap, Jr. (USAF Ret.)

Director, Center for Law, Ethics, and National Security

Duke University School of Law; former Deputy Judge Advocate General, U.S. Air Force; graduate and frequent lecturer, National Security Law Institute (shown above lecturing to the 17th Institute).


nationalsecuritylaw forthcoming scholarship (part II for today)

April 4, 2013

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

Lauryn P. Gouldin

Syracuse University College of Law
American Criminal Law Review, Vol. 49, No. 3, 2012

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.

Non-State Armed Groups and Technology: The Humanitarian Tragedy at Our Doorstep?

Colonel Dave Wallace and Major Shane Reeves (U.S. Military Academy, West Point)

University of Miami School of Law National Security and Armed Conflict Law Review (2013)

Technological advances are altering the contemporary asymmetric conflicts between non-state armed groups and state actors. This article discusses the humanitarian consequences of these changing conflicts by first illustrating the dangers posed by non-state armed groups gaining access to advanced technologies. A subsequent examination of the increasing ability of non-state armed groups to use new technologies, such as cyber operations, to mitigate state actor advantages and the resultant risks to civilian populations follows. The article concludes that the humanitarian challenges presented by this growing intimacy between non-state armed groups and technology, whether through a potentially devastating attack or by the dramatic erosion to the principle of distinction, are immense and cannot be ignored.

The New Griffin of War

Major Shane Reeves, Major Robert E. Barnsby

Harvard International Review (2013)

Famed seventeenth-century jurist Hugo Grotius warned that in warfare belligerents must “not believe that either nothing is allowable, or that everything is.” The latter belief holds that any and all tactics are allowed in warfare, while the former, a largely Christian theological view, holds that warfare is immoral and any resultant actions are therefore prohibited. Grotius understood that unilateral adherence to either of these notions would lead directly to an unworkable paradigm. Rejecting each belief’s most extreme position while simultaneously adopting their reconcilable characteristics, Grotius began to develop a feasible legal framework for conducting warfare. Ultimately, as Oxford University’s Karma Nabulsi describes in her outstanding work Traditions of Justice and War, by seeking the “middle ground” between these two seemingly incompatible views Grotius successfully shaped a conciliatory, realistic model for regulating warfare. The resultant middle ground, which recognized the necessity and legality of “just” wars while proscribing certain aspects of military conduct, solidified Grotius’s legacy and, more importantly, set the stage for the profound legal developments—particularly in the 20th century—that would circumscribe subsequent conflicts, including those in which the United States finds itself today.

"Domestic Drone Use and the Mosaic Theory"

SEAN SULLIVAN, University of New Mexico – University of New Mexico School of Law

The use of unmanned aerial drones – operated by remote pilots and capable of conducting pinpoint strikes on targets around the world – has revolutionized the fight against terrorism. Within the past few years, however, drones have also been used for domestic security and law enforcement purposes, and such local use is likely to expand in the near future. Whether the government’s use of emerging, sophisticated technologies comports with the 4th Amendment’s protection against unreasonable searches and seizures has confounded the courts, and there are growing concerns that traditional 4th Amendment analyses are no longer workable in the context of modern technologies. In U.S. v. Jones (2011), the Supreme Court applied a relatively new doctrine, the “mosaic theory,” in determining whether the government’s use of technology, in this case a G.P.S. tracking system, was consistent with fundamental 4th Amendment protections.

This paper explores whether the “mosaic theory,” laid out by legal scholar Orin Kerr and espoused by the Court in Jones, can be applicable to 4th Amendment challenges to domestic drone use. This paper first explains the extent to which drones are already operational domestically, and briefly discusses proposals to expand their domestic capabilities; second, provides a brief overview of the traditional 4th Amendment analyses in the realm of emerging technologies, with an eye toward determining whether the “property-driven” or “reasonable expectation of privacy” doctrines are no longer applicable to such sophisticated technologies; third, discusses the Jones case as well as the “mosaic theory” in order to provide a solid foundation from which to draw conclusions about its applicability to domestic drone use; and fourth, analyzes a particular type of domestic drone use under the “mosaic theory” rubric, and determines whether it is an appropriate framework to ensure 4th Amendment protections in the context of emerging technologies going forward.

The domestic uses of drones are increasing and have been largely overlooked by the public. At the same time, the courts are struggling with how to check such use against the constitutional right to be free from unreasonable searches and seizures. An appropriate analytical framework is needed to assist the courts in ensuring that the government’s domestic use of drones does not infringe on the people’s well-established civil liberties before drones become an even more ubiquitous part of the domestic American experience or facilitate the creation of a perpetual “nanny state” under the guise of providing national security.

"New Imminence in the Time of Obama: The Impact of Targeted Killings on the Law of Self Defense"

NOURA ERAKAT, Temple University, Beasley School of Law
Email: noura.erakat

President Barak Obama’s authorization to use unmanned aerial vehicles, or drones, to lethally incapacitate persons he believes constitute a threat to the US has become a hallmark of his Administration. Consider that President Barak Obama oversaw fifty-three drone missile attacks during his first year in office, which is more than the total number of similar strikes carried out during the eight years of President George W. Bush’s two terms. The Obama Administration justifies its use of force as self-defense in anticipation of an inevitable attack, whose time and place is uncertain. While international law recognizes the legitimacy of anticipatory self-defense, the Obama Administration’s targeted killing practice, redefines the traditional meaning of imminence by relaxing its temporal standards. The Obama Administration, purports that modern day warfare characterized by adversarial non-state actors coupled with access to devastating weaponry makes the traditional meaning of imminence inappropriate and anachronistic in dealing with these particular threats. Its contention reflects similar concerns raised by US Administrations dating back to Ronald Reagan in the mid-eighties. Indeed, the U.S. has steadily shifted the meaning of imminence for nearly three decades in its response to terrorist threats, not least of which during the George W. Bush Administration, which explicitly declared a “war on terror.” More broadly, the definitional shift of imminence implicates the regulation of the use of force by states. The concept of "new imminence" is highly susceptible to abuse because it can neither be externally regulated nor restrained. To mitigate the risks posed by new imminence, states must either affirm and/or establish an oversight mechanism of the use of force. Alternatively, states should preserve the traditional law of self-defense and insist that states adopt a political, as opposed to a legal, framework to respond to terrorist threats.

"The Cost of Clarity: The Case for a Strict Approach to the Designation of Foreign Terrorist Organizations"

JOHN KNOX, University of Mississippi – School of Law
Email: jfknox

In August 2012, the United States Congress directed Secretary of State Hillary Clinton to determine whether the Haqqani organization, a militant faction loosely associated with the Taliban and based in the tribal region of Pakistan, met criteria for designation as a terrorist organization.

The Haqqani organization has grown to be the predominate force attacking United States military and Afghan civilians in the years since the US-led invasion of Afghanistan and toppling of the Taliban regime. The issue now forced by Congress has drawn a line in the sand between two distinct camps in United States foreign policy. Proponents of the designation of the Haqqani network as a foreign terrorist organization argue that this designation is necessary to force Pakistani compliance with targeting the group, and also to achieve secondary effects such as isolating and attacking the economic capabilities and alliances available to the organization. Opponents to the designation cite the risk that the United States runs in alienating powerful opposition elements that have the capability and growing desire to negotiate a lasting peace in the region, expediting to an eventual withdrawal of United States forces.

This article, then, argues that a hard line approach to organizations under scrutiny as foreign terrorist entities will best achieve the objective of maintaining international peace and security. In contrast, a softer approach, hedged on aspirations of reconciliation, yields results directly counter, with organizations dedicated to the targeting of United States interests to continue violence free of consequences.

Specifically, application of this hard line approach to designation of foreign terrorist organizations will provide a clear line of demarcation for groups targeting United States interests. It will add clarity to the twilight zone that currently exists between when the United States will and will not entertain negotiations with elements seeking concessions adverse to stated United States policy.

Part I of this article describes the situation that currently exists in which extremist organizations are able to exploit the gap in US designations of groups as foreign terrorist organizations. In Part II, the article explains how a hard line approach would yield beneficial results when dealing with organizations adverse to US foreign policy goals, exploring the trade in consequences of designating a terrorist organization early and consistently versus later and without fidelity. Finally, Part III, the article demonstrates why early and consistent designation of terrorist organizations furthers international peace and security objectives by eliminating the ability of these organizations to mature into threats of international significance.


nationalsecuritylaw forthcoming scholarship (part I for today)

April 4, 2013

Robert Jackson’s Opinion on the Destroyer Deal and the Question of Presidential Prerogative

Robert J. Delahunty (University of St. Thomas School of Law (Minnesota))
Vermont Law Review (2013, Forthcoming)

Recent years have seen a revival in interest in the work of Robert Jackson – Franklin Roosevelt’s Attorney General and later Associate Justice of the Supreme Court. Jackson’s account of Executive power in his concurring opinion in the Steel Seizure Case is widely celebrated. But that opinion needs to be read against the backdrop of his earlier work as Attorney General and his judicial opinions in other leading war powers cases, including his notable dissent in Korematsu. Starting with a close analysis of Attorney General Jackson’s controversial 1940 opinion in the "destroyer deal" case – which was written at the point at which Hitler seemed poised to defeat Britain – this essay investigates whether and how far Jackson accepted some form of Presidential "prerogative" to act, even unconstitutionally, in the face of critical emergencies threatening the life of the nation.

Defending Weak States Against the "Unwilling or Unable" Doctrine of Self-Defense

Dawood I. Ahmed (University of Chicago – Law School)
Journal of International Law and International Relations (Toronto), forthcoming

Victim states occasionally use force to target non-state actors that have allegedly attacked the victim state, on the pretext that the host state is “unwilling or unable” (“ineffective”) to act. The international law permissibility of such force is unclear: state responsibility principles do not hold ineffective states liable, the universe of state practice is small and the International Court of Justice and some scholars deny the legality of such force while others disagree. This article is the first dedicated to a critical analysis of the “unwilling or unable” doctrine from both, a law and policy perspective. It argues that, although a right of self-defense in ineffective host states may be desirable in light of contemporary security threats, extant scholarship on the doctrine suffers from blind spots. Not only has debate been almost exclusively doctrinal but, in focusing myopically on the security concerns of victim states vis a vis non-state actors, scholars have paid little attention to security vulnerabilities of host states vis a vis victim states. In fact, much of the literature on the “unwilling or unable” doctrine unquestionably assumes that it should be the victim state that should self-determine when another state is ineffective and fails to recognize two conditions that make erroneous determinations particularly likely. First, host states tend to be weak states, susceptible to coercion and unable to retaliate against misbehavior by powerful victim states. Second, even if the international community is willing to punish erroneous uses of force, since host state ineffectiveness may not be observable, detection of misbehavior becomes very difficult. This article argues that any serious analysis of the doctrine must be based on an appreciation of these conditions and suggests that a right of self-defense on grounds of state ineffectiveness must thus be subject to corresponding constraints. It accordingly proposes an alternate framework to induce transparency: victim states seeking to rely on ineffectiveness as grounds for self-defense must disclose claims of host state ineffectiveness to the Security Council which acts as a fact-finder and information transmitter for the benefit of the international community. The host state can challenge the claim of ineffectiveness while the Counter-Terrorism Committee can provide empirical information as to that host state’s ability and willingness to comply with anti-terrorism obligations.

The Individualization of War: From Collectivism to Individualism in the Regulation of Armed Conflicts

Gabriella Blum (Harvard Law School)

Law and War, Sarat, Douglas, Umphrey eds., Stanford University Press, 2013

In a celebrated humanitarian move, wartime regulation has evolved from a predominantly state-oriented set of obligations — which viewed war as an inter-collective effort — to a more individual-focused regime. In fact, the regulation of armed conflict increasingly resembles, at least in aspiration, the regulation of police activities, in which it is the welfare of individuals, rather than the collective interest of the state, that takes center stage.

I demonstrate that many contemporary debates over the laws of war, including the distinction between the jus ad bellum and jus in bello, proportionality, detention of combatants, and reparations for victims implicate exactly the tension between collectivism and individualism in the regulation of armed conflict.

I further argue that notwithstanding the humanitarian benefits of the move to greater concern over the human rights of those affected by war, reimagining war as a policing operation harbors real dangers that must not be overlooked. These include imagining more of policing as war, inhibiting military action for the protection of others, and inviting more aggressive acts “short of war” against targets around the world.

"A Global Battlefield? Drones and the Geographical Scope of Armed Conflict"

NOAM LUBELL, University of Essex – School of Law
NATHAN DEREJKO, University of Essex – School of Law
Journal of International Criminal Justice, 2013, Forthcoming

The primary focus of this paper is on the legal implications of the geographical disjunction between the location of drone strikes and the primary battlefields for the application of international humanitarian law.

[More, from p.1:]

Defining the geographical scope of an armed conflict is a matter that carries weight in more ways than one.1 Outside the legal sphere the question might seem like one that requires nothing more than common sense – if two (or more) parties are engaged in battle, then the area of conflict is wherever they are fighting. The reality – or at least the legal reality – is unfortunately one that does not conform to simple formulations. Being ‘at war’ or ‘going to war’ does not necessarily mean that the whole of a state is in fact embroiled in an armed conflict. For example, while most of Iraq became a zone of armed conflict in 2003, life for most people in the United States continued uninterrupted while its troops invaded a country on the other side of the globe. This can even be the case for both states involved, as was seen in the 1982 Falklands/Malvinas conflict between the UK and Argentina.2 The same is true for armed conflicts between a state and an organised armed group, which may be raging in one part of the country with little manifestation in other areas as is evident from the armed conflict between the armed forces of the Philippines and the Moro Islamic Liberation Front (MILF), which, for more than 20 years, was largely confined to the southern island of Mindanao.3 Clearly then, the actual hostilities do not necessarily correspond with the borders of the states(s) concerned. Another possibility is to base the determination of geographical scope on the existence of actual fighting. In other words, wherever there are hostilities, there is an armed conflict. But this too has its obstacles, including the question of how to determine what should count as hostilities, and whether there must be a temporal consistency within a specific geographical area that would eliminate occasional flare-ups from the scope. These issues will be returned to in greater detail in later sections.