nationalsecuritylaw forthcoming scholarship

April 7, 2013

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.

Assassination or Targeted Killings after 9/11

John Yoo

University of California at Berkeley School of Law
New York Law School Law Review, Vol. 56, 2012

Critics argue that the use of drones to target alleged members of al Qaeda and related groups violate international and domestic law, particularly the treaty prohibition on extra-judicial killings and the U.S. ban on assassination. These criticisms rest on profound misconceptions of the nature of the war on terrorism and the rules of warfare. Because the United States is at war with al-Qaeda, it can use force — especially targeted force — to conduct hostilities against the enemy’s leaders. This does not violate any American law — constitutional, congressional, or presidential — or any ratified treaty. Precise attacks against individuals have long been a feature of warfare. These attacks further the goals of the laws of war by eliminating the enemy and reducing harm to innocent civilians. Legality aside, targeted killing or assassination can be the best policy in certain circumstances. In the new type of war thrust upon the United States by the 9/11 attacks, the enemy resembles a network, not a nation. This essay argues that targeted killing is a prime tactic for the United States because of al-Qaeda’s unique characteristics as a decentralized, free-scale terrorist network. Despite al-Qaeda’s lawlessness, the United States must still abide by the limits imposed by necessity, discrimination, and proportionality, as well as standard principles of reciprocity, in its use of force against al-Qaeda.

Policing Terrorists in the Community

Sahar F. Aziz

Texas Wesleyan University School of Law
Harvard National Security Journal, Fall 2013

Twelve years after the September 11th attacks, countering domestic terrorism remains a top priority for federal law enforcement agencies. Using a variety of reactive and preventive tactics, law enforcement seeks to prevent terrorism before it occurs. Towards that end, community policing developed in the 1990s to combat violent crime in inner city communities is being adopted as a means of collaborating with Muslim communities and local police to combat ‘Islamist homegrown terrorism.’ Developed in response to paramilitary policing models, community policing is built upon the notion that effective policing requires mutual trust and relationships among local law enforcement and the communities they serve. Thus, traditional community policing is premised on their convergence of interests.

While community policing in counterterrorism appears facially sound, this Article proffers that this endeavor is fraught with peril – both for collective civil liberties interests and local police’s interests in preserving relationships of trust. Accordingly, community policing exacerbates, rather than resolves, the underlying subordination of Muslims post-9/11 manifested in preventive counterterrorism policies, notwithstanding the increase of homegrown terrorism threats from non-Muslim groups.

The Article asserts three critiques of community policing in counterterrorism: it is more akin to counterradicalization taken from military counterinsurgency strategy than the partnership-based traditional community policing model; to the collective detriment of communities it divides them into ‘Good Muslims’ willing to cooperate with law enforcement on the federal government’s terms and ‘Bad Muslims’ who demand a meaningful quid quo pro that ensures protection of Muslim communities’ civil rights and liberties; and it deputizes Muslim leaders to gather and share seemingly innocuous information about their communities that may be used adversely to their collective interests as part of the predominantly prosecution-driven counterterrorism regime.

As such, CCP as currently envisioned betrays its rhetoric of empowerment and mutual trust, and is just another weapon in the federal government’s toolkit that perpetuates the ‘terrorist other’ stereotype. Unless systemic reforms are made to federal preventive counterterrorism strategies, community policing is likely to aggravate existing civil liberties violations and impair otherwise good relations between Muslim communities and local police. Thus, a serious rethinking of proposals to implement community policing in counterterrorism is warranted.

The Future of the Law of Armed Conflict: Ostriches, Butterflies, and Nanobots

Eric Talbot Jensen

Brigham Young University School of Law
Michigan Journal of International Law, Vol. 35, No. 2, 2014, Forthcoming

The law has consistently lagged behind technological developments. This is particularly true in armed conflict, where the 1907 Hague Conventions and the 1949 Geneva Conventions form the basis for regulating emerging technologies in the 21st century. However, the law of armed conflict, or LOAC, serves an important signaling function to states about the development of new weapons. As advancing technology opens the possibility of not only new developments in weapons, but also new genres of weapons, nations will look to the LOAC for guidance on how to manage these new technological advances.

Because many of these technologies are in the very early stages of development or conception, the international community is at a point in time where we can see into the future of armed conflict and discern some obvious points where future technologies and developments are going to stress the current LOAC. While the current LOAC will be sufficient to regulate the majority of future conflicts, we must respond to these discernible issues by anticipating how to evolve the LOAC in an effort to bring these future weapons under control of the law, rather than have them used with devastating effect before the lagging law can react.

This paper analyzes potential future advances in weapons and tactics and highlights the LOAC principles that will struggle to apply as currently understood. The paper will then suggest potential evolutions of the LOAC to ensure it continuing efficacy in future armed conflicts.

"Self-Defence, Intervention by Invitaion, or Proxy War? The Legality of the 2006 Ethiopian Invasion of Somalia"

AHMED ALI M KHAYRE, University of London, Birkbeck College- School of Law

In late 2006, heavily armed Ethiopian troops invaded Somalia with tacit support of the United States. Subsequently, Ethiopia used two legal justifications for its military intervention, namely, inherent right of self-defense and an invitation from the transitional government of Somalia. If nothing else, it appears Ethiopia and the United States wanted to seek a casus belli for military intervention against Union of Islamic Courts. This article examines whether the Ethiopian intervention can be justified as an exception to the general prohibition of the use of force embodied in the United Nations Charter.

Legitimate Target: A Criteria-Based Approach to Targeted Killing

Amos Guiora

Oxford University Press

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ISBN13: 9780199969739ISBN10: 0199969736Hardcover, 122 pages

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Targeted killings represent both the contemporary weapon of choice and, clearly, the weapon of the future. From the perspective of the nation-state, the benefits of targeted killing are clear: aggressive measures against identified targets can be carried out with minimal, if any, risk to soldiers. But while the threat to soldiers is minimal, there are other risks that must be considered. Particularly, there is a high possibility of collateral damage as well as legitimate concerns regarding how a target is defined. Clearly broad legal, moral, and operational issues are at stake when considering targeted killing.

In Legitimate Target, A Criteria Based Approach to Targeted Killing, Amos Guiora proposes that targeted killing decisions must reflect consideration of four distinct elements: law, policy, morality, and operational details, thus ensuring that it complies with principles of domestic and international laws. The author, writing from both personal experience and an academic perspective, offers important criticism and insight into the policy as presently implemented, highlighting the need for a criteria based decision making process in defining and identifying a legitimate target. Legitimate Target, A Criteria-Based Approach to Targeted Killing blends concrete examples with a nuanced study of the current targeted killing paradigm with an emphasis on the dilemmas of morality and the law.

Prisoners of Congress: The Constitutional and Political Clash Over Detainees and the Closure of Guantanamo

David Jason Rankin Frakt

University of Pittsburgh – School of Law; US Air Force JAG Corps Reserve

74 University of Pittsburgh Law Review 1 (2012)

This article discusses the series of increasingly stringent legislative restrictions placed on the transfer or release of Guantanamo detainees from 2009 to the present, the politics behind the restrictions, the effect of such restrictions individually and cumulatively on the detainees, and the constitutionality of such restrictions. The article concludes that dozens of innocent, low-risk and cleared detainees have had their releases or transfers delayed or blocked completely by Congressional spending restrictions. The article refers to these detainees as "Prisoners of Congress." The article also analyzes the extent to which Congress, as compared to the President, can be held responsible for the failure of President Obama’s declared intention to close the detention facilities at Guantanamo.