nationalsecuritylaw forthcoming/recent scholarship (capture/detention etc., separation of powers)

Capture/Detention/Trial/Removal

Pre-Crime Restraints: The Explosion of Targeted, Non-Custodial Prevention

Jennifer C. Daskal (American University)

99 Cornell Law Review 327 (2014)

This Article exposes the ways in which noncustodial pre-crime restraints have proliferated over the past decade, focusing in particular on three notable examples — terrorism-related financial sanctions, the No Fly List, and the array of residential, employment, and related restrictions imposed on sex offenders. Because such restraints do not involve physical incapacitation, they are rarely deemed to infringe core liberty interests. Because they are preventive, not punitive, criminal law procedural protections do not apply. They have exploded largely unchecked — subject to little more than bare rationality review and negligible procedural protections — and without any coherent theory as to their appropriate limits.

The Article examines this category of noncustodial pre-crime restraints as a whole and develops a framework for evaluating, limiting, and legitimizing their use. It accepts the preventive frame in which they operate but argues that in some instances, noncustodial restraints can so thoroughly constrain an individual’s functioning that they are equivalent to de facto imprisonment and ought to be treated as such. Even in the more common case of partial restraints, enhanced substantive and procedural safeguards are needed to preserve the respect for individuals’ equal dignity, freedom of choice, and moral autonomy at the heart of the liberty interest that the Constitution and a just society protect.

A Tale of Two Citizenships: Citizenship Revocation for "Traitors and Terrorists"

Craig Forcese (University of Ottawa)
Queen’s Law Journal, Vol. 39, No. 2 (2014)

Amending Canada’s citizenship laws to provide for denaturalization of “traitors and terrorists”, as proposed by the current federal government, is an idea consumed with legal flaws. To comply with international law on the prohibition of citizenship deprivation that would result in statelessness, any such amendments would have to apply only to individuals with dual citizenship. However, targeting those individuals would be very hard to defend against equality-based challenges under the Canadian Charter of Rights and Freedoms. In addition, denaturalization of “traitors and terrorists” might well be perceived as a punitive measure, whose impact and stigma would call for constitutional procedural protections far stronger than those set out in the current Citizenship Act and the proposed revisions to it. Such denaturalization also seems unlikely to advance any clear Canadian national security interest, and would accomplish less than can be done through other laws, including the Criminal Code.

Expatriating Terrorists

Peter J. Spiro (James E. Beasley School of Law)

82 Fordham Law Review, 2169 (2014)

There have been few episodes in which Congress has resisted counter-terror initiatives. Notable among exceptions are proposals to strip terrorists of their U.S. citizenship. The bipartisan rejection of such proposals presents a puzzle. Insofar as citizenship has historically been associated with loyalty, it would seem a costless, expressive remedy to terminate the citizenship of those who lend support to hostile entities. And yet high-profile efforts to legislate the termination of citizenship in the context of terrorist activities have fallen flat in the United States.

This essay seeks to explain the rejection of a terrorism ground for terminating U.S. citizenship. The essay first establishes the constitutionality of proposals, focusing on Joe Lieberman’s 2010 Terrorist Expatriation Act, which would have used association with foreign terrorist groups to evidence an individual’s intent to relinquish citizenship. Conforming such measures to the Supreme Court’s citizenship jurisprudence limits their utility. The Lieberman proposal could have been put to work in a very small number of cases. Expatriation would be clear-cut only where terrorist activity were coupled with unambiguous expressions of individual intent. Expatriation would do little to advance the counter-terror agenda. Few counter-terror tactics account for citizenship. Citizenship no longer buys individuals much protection.

Where the expatriation proposal lacked instrumental advantage, it might have had expressive value. The essay concludes that rejection of the expatriation measure was overdetermined, and that various contingencies and legacy understandings of U.S. citizenship undermine the expressive value of terrorist expatriation. Even as other states (including the United Kingdom) broaden terrorist expatriation practices, it is unlikely to become a dimension of the U.S. counter-terror response.

Addressing the Guantanamo "Legacy Problem": Bringing Law-of-War Prolonged Military Detention and Criminal Prosecution into Closer Alignment

Norman Abrams (UCLA)
Journal of National Security Law (Forthcoming)

The U.S. government claims authority under the law of war to detain enemy belligerents captured in the war against the Taliban and al Qaeda for the duration of the conflict. Enemy belligerents in this war are generally regarded by U.S. authorities as unprivileged under the Geneva Conventions, and acts they commit in furtherance of the war are therefore likely to be crimes under the law of war and/or under U.S. domestic law. Regarding those belligerents who, because they are considered dangerous, have not qualified for release and transfer to another country, the government has had two choices — to detain them in military custody on a prolonged basis (for the duration of the conflict), or to prosecute them for crimes they are alleged to have committed.

President Obama has stated a strong preference for the criminal prosecution option. But for many of the detainees, prosecution is not feasible — for a variety of reasons. These detainees are likely to remain in prolonged detention. The President has described the continuing detention of these individuals as the "legacy problem," i.e. prolonged detention cases left over from the post-9/11 period.

The purpose of this paper is to address the legacy problem, in part by taking into account the fact that all of the long term detainees, both those whom it is infeasible to prosecute as well as those who can be prosecuted, can be said to have engaged in culpable criminal activity. A primary goal is to reduce the inequality between the two paths — criminal prosecution or prolonged military detention — by bringing law of war detention and criminal prosecution into closer alignment. Under the present system, choice between the paths appears to result in unequal treatment, i.e., in many cases, criminal prosecution and the imposition of a fixed term sentence for those who are convicted versus what looks like an indefinite period of detention in military custody for the other cohort (subject to the possibility of release through a periodic review process) — even though both cohorts are alleged to have engaged in culpable criminal conduct. A revised approach should, while paying heed to national security interests, not only decrease this apparent difference in treatment but also increase the chances that most of the detainees in indefinite detention might be released short of a lifetime in custody and thus give them some reasonable hope that their detention may end at some point.

Progress toward these several goals, which are closely related, can be achieved by tinkering with, and adding to the existing approach, taking into account the special features of a war against a terrorist organization — by introducing into the indefinite detention track some fixed-term criminality attributes plus a standard to be applied for continued indefinite detention, while adding to the criminal prosecution/fixed term imprisonment track a similar standard governing the possibility of a return to military custody.


US Constitutional Law & Separated Powers

International Law and Institutions and the American Constitution in War and Peace

Thomas Lee (Fordham)

Berkeley Journal of International Law, Vol. 31, No.291 (2013)

This Article describes how international law and institutions are not necessarily incompatible with U.S. sovereign interests today and how they were historically accepted as valid inputs to interpreting and implementing the Constitution during the founding and infancy of the United States and through the Civil War.

Ending Perpetual War? Constitutional War Termination Powers and the Conflict Against Al-Qaeda

David A. Simon (Independent)

Pepperdine law Review, Vol. 41, No. 685 (Forthcoming, 2014)

This Article presents a framework for interpreting the constitutional war termination powers of Congress and the President and applies this framework to questions involving how and when the war against Al Qaeda and associated forces could end. Although constitutional theory and practice suggest the validity of congressional actions to initiate war, the issue of Congress’s constitutional role in ending war has received little attention in scholarly debates. Theoretically, this Article contends that terminating war without meaningful cooperation between the President and Congress generates tension with the principle of the separation of powers underpinning the U.S. constitutional system, with the Framers’ division of the treaty-making authority, and with the values they enshrine. Practically, this Article suggests that although the participation of both Congress and the President in the war termination process may make it more difficult to end a war, such cooperative political branch action ensures greater transparency and accountability in this constitutional process.

This Article also examines normative questions about the role of the President and Congress in exercising their respective war termination powers, and argues that the treaty-making process represents an approach to war termination that best reflects the constitutional values of the interdependence of the political branches, while checking interbranch rivalry and preserving the constitutional and foreign relations prerogatives of Congress and the President.

When May the President Break the Law? A Theory of Republican Prerogative

Julian Davis Mortenson (Michigan)
S. Cal. L. Rev. 87 (Forthcoming, 2014)

The events of September 11 prompted renewed debate about the three main approaches to emergency power: statutory, constitutional, and extralegal. But the central substantive problem of the extralegal approach has yet to be carefully addressed: When may the executive violate the law without a statutory or constitutional basis for doing so?

This paper identifies two principles — the privilege of republican prerogative and the obligation of a republican ethic — that combine to offer a coherent answer for certain kinds of executive lawbreaking. As its various strands have emerged from Anglo-American tradition, what I call the republican prerogative becomes available when (i) the republic faces a sudden, irregular, and existentially severe threat; (ii) the executive’s response is strictly necessary and does not exceed the scope of the exigent threat; and (iii) the executive discloses and takes responsibility for the violation. Republican prerogative may not be the only type of justifiable extralegal privilege, but it has a long (though theoretically underdeveloped) historical pedigree and a striking (though latent) coherence.

One problem remains. If the republican prerogative is extralegal in character, how can we speak intelligibly of limits on its exercise? The answer identified here emerges from what I call the republican ethic: a normative claim that our constitutional republic is an intrinsically value-bearing entity, worthy of moral consideration and creating moral obligations in its own right. On this view, the moral requirements of a republican ethic — itself grounded in a possessive embrace of our legal system — trump the legal requirements of our Constitution and laws.

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