nationalsecuritylaw forthcoming scholarship

October 28, 2013

Law at the End of War

Deborah N. Pearlstein (Cardozo)

As the United States begins to withdraw troops from Afghanistan in the coming year, courts will increasingly face the task of interpreting the dozens of federal laws whose operation depends on the existence of war. The 2009 Military Commissions Act (MCA), for instance, makes offenses triable by military commission “only if the offense is committed in the context of and associated with hostilities.” The 2001 Authorization for Use of Military Force (AUMF) empowers the President to target or detain certain individuals only “for the duration of these hostilities.” Scholars have long assumed that the determination whether or not the United States is at war is a political question, beyond the power of the courts to consider. This Article challenges that view, demonstrating that courts have repeatedly engaged such questions in statutory interpretation in conflicts past, and arguing that the temporal limits of the AUMF and MCA pose similarly justiciable questions. Yet while questions of war’s existence may be susceptible of judicial resolution, the possibility that a court’s answer may prevail over a differing view of the executive seems instinctively troubling. Separation of powers theory has long recognized interests in allocating decision-making authority among the branches so as to promote political accountability and take advantage of comparative institutional expertise. Such interests would seem to require that courts at least defer to executive determinations of war’s existence. Recognizing the constitutional salience of such interests, this Article contends that courts should only defer when doing so will in fact serve them. And those goals are not invariably advanced by deference to the executive in interpreting the AUMF and MCA. Active judicial participation in statutory interpretation may create incentives for congressional action that had previously been absent, making it harder for Congress to shirk participation in democratic debates in which the Constitution expects it to engage. Likewise, while some aspects of the existence-of-war inquiry may turn on predictive judgment, best reserved to executive expertise, other aspects of the inquiry turn on objective factual assessments – the kind the judiciary regularly undertakes. These dynamics, coupled with the equally salient separation-of-powers purpose of protecting individual rights, suggest a broader role for the judiciary in interpreting existence-of-war conditions than has been previously understood.

Duck-Rabbits and Drones: Legal Indeterminacy in the War on Terror

Rosa Brooks (Georgetown)

Stanford Law and Policy Review, Forthcoming

In the days and weeks immediately following the 9/11 attacks, “the law” offered little to lawyers or policy-makers looking for guidance. Indeed, for many the events of 9/11 became the legal equivalent of a Rorschach test: depending on the observer, the 9/11 attacks were variously construed as criminal acts, acts of war, or something in between, thus fitting into (or triggering) any of several radically different legal regimes.

Divergent interpretations of the law are common, of course. Legal rules often contain an element of ambiguity, and the “facts” to which law must be applied can frequently be construed in multiple ways. But in the wake of 9/11, lawyers and policy-makers faced an even more profound problem: different conceptualizations of what happened on 9/11 didn’t simply reflect or suggest a different interpretation of legal rules, but actually triggered radically different legal regimes. The “facts” could be described, with equal plausibility and honesty, in substantially different ways. As a result, there was no clear “legal” basis for choosing one legal regime over another, and law became not merely ambiguous, but effectively indeterminate.

Targeted Killings and the Interest Convergence Dilemma

Sudha Setty (Western New England)

Western New England Law Review, Forthcoming

In the 1980s, Professor Derrick Bell posited a theory of interest convergence as part of his critical race theory work, arguing that the major strides forward in civil rights law and policy that benefited African Americans in the 1950s and 1960s only occurred because of the perceived benefits of those changes to white elites during that time. In Bell’s view, it was only at the point at which the interests of powerful whites converged with those of marginalized racial minorities that significant changes in civil rights law could occur. Twelve years after the terrorist attacks of September 11, 2001, numerous lawmakers, scholars, activists, and policy makers find themselves entrenched in a different struggle for civil and human rights: combatting counterterrorism laws and policies that overreach in their efforts to detain, interrogate, surveil and kill suspected terrorists. In this symposium essay, the Author uses Professor Bell’s theory of interest convergence to frame the debate over an increasingly common counterterrorism tool: the use of unmanned aerial vehicles (“drones”) to target and kill individuals suspected of encouraging or planning terrorist acts. 

Interest convergence theory can help us examine the shifting parameters of the drone program in several ways: first, to map the areas of interest convergence between politically powerful groups and those interested in protecting marginalized groups such as Muslims and Arabs, which can help explain why certain limitations on the use of targeted killings have been put into place already; second, to consider the plausibility of the fulfillment of the promises made by President Obama in his May 2013 speech on the administration’s national security policies, in which he stated that the parameters of the targeted killings program will be narrowed; and third, in a limited fashion, to consider whether interest convergence can offer guidance on pushing for further limitations on the use of targeted killings.

Hackback: Permitting Retaliatory Hacking by Non-State Actors as Proportionate Countermeasures to Transboundary Cyberharm

Jan Messerschmidt (Independent)

Columbia Journal of Transnational Law, Forthcoming

Cyber-espionage has received even greater attention in the wake of reports of persistent and brazen cyber-exploitation of U.S. and Canadian firms by the Chinese military. But the recent disclosures about NSA surveillance programs have made clear that a national program of cyber-defense of private firms intellectual property is politically infeasible. Following the lead of companies like Google, private corporations may increasingly resort to the use of self-defense, hacking back against cross-border incursions on the Internet. Most scholarship, however, has surprisingly viewed such actions as outside the ambit of international law. This note provides a novel account of how international law should govern cross-border hacks, and especially hack-backs. It proposes that significant harm to a State’s intellectual property should be viewed as “trans-boundary cyber-harm” and can be analyzed under traditional international legal principles, including the due diligence obligation to prevent significant harm to another State’s territorial sovereignty. Viewing cyber-espionage within this framework, international law may presently permit States to allow private actors to resort to self-defense as proportionate counter-measures. By doing so, this note offers a prescription for how States might regulate private actors to prevent unnecessary harm or vigilantism while preserving the right of self-defense.

The Observer Effect: National Security Litigation, Executive Policy Changes, and Judicial Deference

Ashley Deeks (University of Virginia)

Fordham Law Review, Forthcoming

The national security deference debate has reached a stalemate. Those favoring extensive deference to executive branch national security decisions celebrate the limited role courts have played in reviewing those policies. The executive, they contend, is constitutionally charged with such decisions and structurally better suited than the judiciary to make them. Those who bemoan such deference fear for individual rights and an imbalance in the separation of powers. Yet both sides assume that the courts’ role is minimal. Both sides are wrong.

This Article shows why. While courts rarely intervene in national security disputes, the Article demonstrates that they nevertheless play a significant role in shaping executive branch security policies. Call this the “observer effect.” Physics teaches us that observing a particle alters how it behaves. Through psychology, we know that people act differently when they are aware that someone is watching them. In the national security context, the executive is highly sensitive to looming judicial oversight in the national security arena, and establishes or alters policies in an effort to avert direct judicial involvement. By identifying and analyzing the observer effect, this Article provides a more accurate positive account of national security deference, without which reasoned normative judgments cannot be made. This Article makes another contribution to the literature as well. By illustrating how the uncertain, but lurking, threat of judicial decisions spurs increasingly rights-protective policy decisions by the executive, it poses a rejoinder to those who are skeptical that law constrains the executive.

Domestic Humanitarian Law: Developing the Law of War in Domestic Courts

Ashley Deeks (University of Virginia)

Applying International Humanitarian Law in Judicial and Quasi-Judicial Bodies: International and Domestic Aspects (2014) (D. Jinks, J. Maogoto, S. Solomon (eds.),

Several states have been engaged for years in armed conflicts against non-state actors outside their territory. These conflicts implicate a wide array of difficult questions related to international humanitarian law (‘IHL’). Yet for structural and political reasons, the international community has not attempted to craft a new treaty to regulate these armed conflicts, and state practice is not yet sufficiently robust to crystallize new rules of customary international law.

Although we have no new international rules to guide states’ conduct in these contexts, that is not to say that we have no new rules at all to regulate these types of armed conflict. The new rules simply stem from non-international sources. Domestic courts of certain states have played a significant role in establishing new rules to govern how those states must conduct themselves during these armed conflicts. These courts have stepped in to interpret, extend, and craft laws applicable in armed conflict, producing what this chapter terms ‘domestic humanitarian law’ (‘DHL’).

DHL is important for two reasons. First, it establishes detailed, legally binding rules by which particular states’ militaries must conduct themselves in extra-territorial conflicts. Second, the existence of DHL will have a significant effect on future IHL developments. DHL will affect the production and content of customary rules, the likelihood of future agreements about IHL, and the substance of those future rules in the event such an agreement emerges. The proliferation of DHL has the propensity to reduce international calls for a new treaty and complicates the initial negotiating positions of states whose courts have produced DHL. But DHL has advantages as well for IHL development, akin to the U.S. constitutional idea that U.S. states serve as experimental ‘laboratories’ in which different approaches to problems are tested.

Because states will continue to face serious challenges in developing new IHL treaty rules on the international stage, the production of new interpretations and norms in U.S. and other domestic courts represents a potentially important phase in the development of IHL. As importantly, the phenomenon of DHL allows us fruitfully to explore the nature of domestic court decisions more generally in the project of international law creation.