nationalsecuritylaw forthcoming scholarship (part II for today)

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.

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