Al-Zahrani v. Rumsfeld (D.D.C. Feb. 16, 2010)

February 18, 2010

* Al-Zahrani v. Rumsfeld (D.D.C. Feb. 16, 2010)

Judge Huvelle has granted a motion to dismiss a civil suit against the United States and various officials, brought on behalf of two men who died at GTMO.  The suit asserted claims under the Alien Tort Statute, the Federal Tort Claims Act, and the Fifth and Eighth Amendments.  The full text appears below: Read the rest of this entry »


AG Holder’s Letter to Senator McConnel et al concerning Abdulmutallab

February 3, 2010

* AG Holder’s Letter to Senator McConnell et al concerning Abdulmutallab (Feb. 3, 2010)

A very interesting document released by DOJ today: a response by AG Holder to a request for information from a group of senators concerning the detention and interrogation of Abdulmutallab.  The document (5 pages) is posted here.

Key excerpts (highlights added):

In the days following December 25 – including during a meeting with the President and other senior members of his national security team on January 5 – high-level discussions ensued within the Administration in which the possibility of detaining Mr. Abdulmutallab under the law of war was explicitly discussed. No agency supported the use of law of war detention for Abdulmutallab, and no agency has since advised the Department of Justice that an alternative course of action should have been, or should now be, pursued. Read the rest of this entry »


Al Mutairi v. United States; forthcoming scholarship

August 5, 2009

1. Khalid Abdullah Mishal Al Mutairi v. United States (D.D.C. July 29, 2009) (opinion explaining decision to grant habeas to GTMO detainee)

Back on July 29th, Judge Kollar-Kotelly granted Al Mutairi’s habeas petition.  The underlying opinion was not released at the time, but now is available.  It is posted here.  Key points include:

On the admissibility of hearsay: “The Court finds that allowing the use of hearsay by both parties balances the need to prevent the substantial diversion of military and intelligence resources during a time of hostilities, while at the same providing Al Mutairi with a meaningful opportunity to contest the basis of his detention. The Court is fully capable of considering whether a piece of evidence (whether hearsay or not) is reliable, and it shall make such determinations in the context of the evidence and arguments presented during the Merits Hearing -including any arguments the parties have made concerning the unreliability of hearsay evidence.” (slip op. at 4)

On the government’s request for a presumption that its evidence is both accurate and authentic: “the Government argues that a presumption as to its evidence is both appropriate and necessary. The Court disagrees. One of the central functions of the Court in this case is “to evaluate the raw evidence” proffered by the Government and to determine whether it is “sufficiently reliable and sufficiently probative to demonstrate the truth of the asserted proposition with the requisite degree of clarity.” Parhat, 532 F.3d at 847. Simply assuming the Government’s evidence is accurate and authentic does not aid that inquiry. Cf Ahmed v. Obama, 613 F. Supp. 2d 51, 55 (D.D.C. 2009) (rejecting a presumption of accuracy for the Government’s evidence and holding that ”the accuracy of much of the factual material contained in [the Government’s] exhibits is hotly contested for a host of different reasons …”).” (slip op. at 5)

On the substantive scope of the government’s detention authority: The Court agrees that the President has the authority to detain individuals who are “part of’ the Taliban, al Qaeda, or associated enemy forces, but rejects the Government’s definition insofar as it asserts the authority to detain individuals who only “substantially supported” enemy forces or who have “directly supported hostilities “in aid of enemy forces. While evidence of such support is undoubtedly probative of whether an individual is part of an enemy force, it may not by itself provide the grounds for detention. Accord Mattan, 2009 U.S. Dist. LEXIS 43286 at *13-*15. Accordingly, the Court shall consider whether AI Mutairi is lawfully detained in the context of the following standard:

The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of the Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act in aid of such enemy armed forces.” (slip op. at 8)

On the credibility of Al Mutairi’s version of events (i.e., that he traveled from Kuwait to Afghanistan after 9/11 to build a mosque): “Based on these identified inconsistences, implausibilities, and in some respects, impossibilities, the Court does not credit Al Mutairi’s version of events that occurred while he was in Afghanistan.”  (slip op. at 15-16)

On the significance of the Court’s decision to reject Al Mutairi’s account: “Notwithstanding the Court’s conclusions with respect to Al Mutairi’s version of events, the Court’s inquiry is far from complete. Because Al Mutairi has no burden to prove his innocence, the Court must now assess the Government’s evidence to determine whether it has demonstrated by a preponderance of the evidence that during the time for which Al Mutairi cannot account, he trained with or became a part of al Wafa (according to the Government, an associated force of al Qaida), or al Qaida itself.” (slip op. at 16)

On the credibility of the government’s evidence: This portion of the opinion is redacted in significant part, but is still worth reading if you want a sense of how Judge Kollar-Kotelly parsed the evidence.  She summarized her assessment as follows: “In summary, the Court has credited the Government’s evidence that (1) Al Mutairi’s path of travel into Afghanistan was consistent with the route used by al Wafa to smuggle individuals into Afghanistan to engage in jihad; (2) that Al Mutairi’s travel from Kabul to a village near Khowst was consistent (in time and place) with the route of Taliban and al Qaida fighters fleeing toward the Tora Bora mountains along the Afghanistan-Pakistan border, and (3) Al Mutairi’s non-possession of his passport is consistent with an individual who has undergone al Qaida’s standard operating procedures that require trainees to surrender their passports prior to beginning their training. The Court has also found minimally probative on this record the appearance of Al Mutairi’s name and reference to his passport. Taking this evidence as a whole, the Government has at best shown that some of Al Mutairi’s conduct is consistent with persons who may have become a part of al Wafa or al Qaida, but there is nothing in the record beyond speculation that Al Mutairi did, in fact, train or otherwise become a part of one or more of those organizations, where he would have done so, and with which organization. While Al Mutairi’s described peregrinations within Afghanistan lack credibility, the Government has not filled in these blanks nor supplanted Al Mutairi’s version of his travels and activities with sufficiently credible and reliable evidence to meet its burden by a preponderance of the evidence. Accordingly, the Court shall grant Al Mutairi’s petition for habeas corpus.”

2. Forthcoming scholarship

The National Strategy Forum Review, “Strategic Challenges Near and Far” (August 2009)

NSFR is a terrific publication, one that should be more widely read.   The most recent issue is posted as a pdf here, and its contents are as follows:

August 2009 Publisher’s Note


The United States and Mexico: Mutual Problems, Joint Solutions The following five essays discuss many of the challenges that the United States and Mexico face in coordinating effective border policies.  The goal is to elucidate the many areas where more cooperation and tighter joint strategies are needed by both countries to achieve their national goals.

Reasons of State that Sustain Mexico’s Strategy Against Organized Crime
Eduardo Medina-Mora

The Mexico-United States Border: A Fragmented Agenda
Luis Herrera-Lasso M.

The Mérida Initiative: A New Security Cooperation Partnership
David T. Johnson

Mexico’s Strategy
Iñigo Guevara Moyano

Mexico’s Polity and Economy: Security vs. Progress and Our Failed Integration
José Luis Valdés-Ugalde

Special Report:
American Foreign Policy Toward Pakistan
Frank Schell, Richard E. Friedman, and Lauren Bean

Regions at a Glance:
War in Afghanistan: Achieving a Successful Civilian Surge
Catherine Dale

NSF Insider Views:
Trying Terrorists
Richard E. Friedman

The Iranian and North Korean Nuclear Programs and International Law
John Allen Williams

Speaker Summary:
Ilan Berman and Winning the Long War
Eric S. Morse

“Jurors Believe Interrogation Tactics are Not Likely to Elicit False Confessions: Will Expert Witness Testimony Inform Them Otherwise?”

Psychology, Crime & Law, 2009

IRIS BLANDON-GITLIN, affiliation not provided to SSRN
KATHRYN SPERRY, affiliation not provided to SSRN
RICHARD A. LEO, University of San Francisco – School of Law
Email: rleo@usfca.edu

Situational factors – in the form of interrogation tactics – have been reported to unduly influence innocent suspects to confess. This study assessed jurors’ perceptions of these factors and tested whether expert witness testimony on confessions informs jury decision-making. In Study 1, jurors rated interrogation tactics on their level of coerciveness and likelihood that each would elicit true and false confessions. Most jurors perceived interrogation tactics to be coercive and likely to elicit confessions from guilty, but not from innocent suspects. This result motivated Study 2 in which an actual case involving a disputed confession was used to assess the influence of expert testimony on jurors’ perceptions and evaluations of interrogations and confession evidence. The results revealed an important influence of expert testimony on mock-jurors decisions.

“Human Rights and Military Decisions: Counterinsurgency and Trends in the Law of International Armed Conflict”
University of Pennsylvania Journal of International Law, Vol. 30, p. 1367, 2008-09
UNLV William S. Boyd School of Law Legal Studies Research Paper No. 09-13

DAN E. STIGALL, U.S. Army JAG Corps
Email: dan.stigall@us.army.mil
CHRISTOPHER L. BLAKESLEY, William S. Boyd School of Law, UNLV
Email: chris.blakesley@unlv.edu
CHRIS JENKS, Government of the United States of America – Judge Advocate General’s Corps
Email: mcjenks03@yahoo.com

The past several decades have seen a Copernican shift in the paradigm of armed conflict, which the traditional Law of International Armed Conflict (LOIAC) canon has not fully matched. Standing out in stark relief against the backdrop of relative inactivity in LOIAC, is the surfeit of activity in the field of international human rights law, which has become a dramatic new force in the ancient realm of international law. Human rights law, heretofore not formally part of the traditional juridico-military calculus, has gained ever increasing salience in that calculus. Indeed, human rights law has ramified in such a manner that – given the nature of contemporary conflict, it is no longer possible to address one body of law without also dealing with the other. This has been the most dramatic trend for LOIAC in the last decade. It will doubtlessly continue.

This article briefly addresses this interesting and important phenomenon in the context of the history of LOIAC and modern warfare, which has changed from large-scale clashes of the military might of sovereign states to conflict characterized by long-term guerilla and asymmetric warfare, concomitant counterinsurgency, and stability operations. The nature of contemporary stability operations and counterinsurgency has broadened the scope of military operations so that commanders must now engage in a range of activities not traditionally considered combat-related. Associated with this expanded range of military responsibility is an expanded range of legal responsibility. Hence, we arrive at the necessity and value of human rights law. We briefly identify the general implications of the legal trend and illuminate some notable aspects of the legal landscape that loom before military commanders and their advisors.

The issue of where, when, and how human rights protections apply is essential to understanding their functionality. The treatment of detainees is a prime example of the expanded range of legal responsibility that implicates human rights law. Thus, our discussion of jurisdiction includes analysis of variations among some countries and various regional and international organizations, which differ in their positions on the proper extraterritorial application or jurisdictional scope of their own and international human rights norms. This includes analysis of recent interesting decisions from the British House of Lords and the European Court of Human Rights. Finally, we discuss the Copenhagen Process, which began with the first Copenhagen Conference held in October 2007. The Copenhagen Process is an effort to establish a common platform for the handling of detainees which illustrates how intertwined strands of international human rights law and LOIAC have become. It may also represent a way, if not to cut the Gordian knot, then to move past it with a better recognition of how both legal strands will influence future military operations.

Killing Civilians

Adil Ahmad Haque

Rutgers, The State University of New Jersey – School of Law-Newark

There is a gap between the international humanitarian law of Geneva and the international criminal law of Rome, a gap between the law we have and the law we need if we are to “ensure respect for and protection of the civilian population” caught in the midst of armed conflict. The Rome Statute fails to faithfully translate the prescriptive, action-guiding rules of humanitarian law into a correspondingly robust set of evaluative, judgment-guiding rules suitable for criminal adjudication. The result is a document that is not only substantively incomplete but morally incoherent as well. The purpose of this article is to expose these defects and propose a way to overcome them. Drawing on contemporary criminal law theory, it offers a new approach to war crimes against civilians, one that better protects and respects the value of civilian life.

The Rome Statute is substantively incomplete in the sense that it fails to enforce core principles of humanitarian law designed to protect civilians. As a result, it is possible for a combatant to kill civilians with a culpable mental state, without justification or excuse, and in violation of humanitarian law, yet escape criminal liability under the Rome Statute. The Rome Statute is morally incoherent in the sense that the legal definitions of the relevant war crimes ignore or misapply fundamental criminal law categories—conduct offenses and result offenses, material and mental elements, offenses and defenses—and inadvertently sever the relevant prohibitions from the humanitarian values that should provide their moral foundation. This article proposes a redefined offense of Willful Killing that fully incorporates the principles of distinction and discrimination as well as a new affirmative defense that fully incorporates the principles of necessity and proportionality. Only by adopting such an approach can international criminal law provide civilians their full measure of legal protection and moral recognition.

“Managerial Judging, Court’s Limited Information and Parties’ Resistance: An Empirical Assessment of Why the Reforms to Expedite the Procedure of the International Criminal Tribunal for the Former Yugoslavia Did Not Work”

UCLA School of Law, Law & Economics Research Paper No. 09-12

MAXIMO LANGER, University of California, Los Angeles – School of Law
Email: langer@law.ucla.edu
JOSEPH W. DOHERTY, University of California, Los Angeles – School of Law
Email: doherty@law.ucla.edu

This article analyzes whether managerial judging reforms that were introduced to expedite procedure at the International Criminal Tribunal for the former Yugoslavia (ICTY) achieved their goal. Using survival analysis – Weibull regression – the paper tests the hypothesis that the higher the number of reforms a case was subjected to, the shorter the pretrial and trial phase of that case should be. Our six models for pretrial and trial reveal that in all pretrial and trial models the number of reforms is significantly correlated with longer pretrial and trial. The article explains that reforms made process longer rather than shorter because ICTY judges did not use their managerial powers or used them deficiently, and prosecution and defense managed to neutralize the implementation of the reforms. To explain judges’ behavior, the paper articulates an unnoticed challenge for managerial judging – the court is likely to have limited information about the case that may lead judges to restrict use of their managerial powers to avoid making inefficient decisions. In addition, ICTY did not have an implementation plan to encourage judges to change their behavior. The paper also explains the incentives that prosecution and defense had to neutralize the reforms.

“Child Soldiers: Agency, Enlistment, and the Collectivization of Innocence”

Washington & Lee Legal Studies Paper No. 2009-7

MARK A. DRUMBL, Washington and Lee University School of Law
Email: DRUMBLM@WLU.EDU

This Paper reviews how international criminal law proscribes the conscription, enlistment, or use of children in armed conflict. This legal regime then is contrasted with the social reality of child soldiering, in particular as revealed by ethnographic research from Sierra Leone, the DRC, and northern Uganda regarding how children end up in armed conflict and what they do during conflict. Field research suggests that children exercise greater agency in enlisting in armies, fighting forces, and militias than international criminal law assumes; what is more, field research also suggests that, despite the existence of staggeringly coercive pressures, some children may exercise greater authorship over the violence they commit than international lawyers and human rights workers assume. An individual can be both a victimizer and a victim at the same time – a reality with which international criminal law remains queasy.

Assessing the agency of child soldiers is a difficult task that requires great sensitivity, care, and nuance. It is considerably easier to prejudge ex ante that they have no responsibility than to examine ex post why, exactly, they join militias and then why, exactly, some among them commit terrible crimes. International criminal law, however, ought to be the subject of objective study and dispassionate inquiry. The soothing path that assuages collective sensibilities is not necessarily the best path to protect children from endemic violence, to safeguard and heal post conflict societies, or to promote the best interests of those children who commit international crimes. International criminal lawyers should encourage, instead of gloss over, the hard work and discomforting questions that should be addressed in order to reintegrate children who perpetrate grievous atrocity in a salutary, viable manner that dissuades their recidivism, ostracism, and marginalization. Atrocity trials for children are not a solution; neither, however, is an absence of any accountability mechanism.


Ashcroft v. Iqbal; upcoming events; forthcoming scholarship

May 19, 2009

[note: some of you have inquired recently to ensure the list is running correctly, prompted by the low volume of recent posts.  Not to worry; the drop-off in volume just reflects some competing work obligations that will have an impact between now and late July.  From late July onward, things will be back to normal (if not sooner).]

1. Ashcroft v. Iqbal (S.Ct. May 18, 2009)

The Supreme Court yesterday held that a Bivens complaint (asserting civil causes of action against several government officials in connection with post-9/11 immigration enforcement measures) failed to satisfy the pleading standard set forth in Twombly.  En route to that holding, the court noted that Bivens liability in this context cannot be vicarious, but must instead be premised on the individual defendant’s personal unconstitutional conduct.  The case will be remanded to the Second Circuit for a determination as to whether the plaintiffs should be given leave to replead.

The opinion appears here.

2. Upcoming Events

“Scars of Intelligence Reform” (Breakfast presentation by Donald Kerr, sponsored by the ABA Standing Committee on Law and National Security) Tuesday June 9th, at 8 a.m.

Dear Colleague:

On Tuesday, June 9, 2009, Donald Kerr, former Principal Deputy Director of National Intelligence in the Office of the Director of National Intelligence, will address the Standing Committee on Law and National Security.  His topic is “Scars of Intelligence Reform.”

The breakfast will be held at the University Club, 1135 16th Street, NW in Washington and will begin at 8:00 am.

Dr. Kerr, currently a Research Professor at George Mason University, has a notable career in the Intelligence Community. Prior to serving as second in command in the office of the DNI, he served as Director of the National Reconnaissance Office, Deputy Director for Science and Technology at the CIA, Assistant to the Secretary of the Air Force for Intelligence Space Technology and Assistant Director of the FBI, responsible for the Laboratory Division and Director of the Los Alamos National Laboratory from 1979 to 1985.

The charge for this breakfast is $25.00.  Reservations must be made in advance.  Checks made payable to “ABA” may be enclosed with the response form attached [SEE ATTACHMENT] and returned by June 5. If you are bringing guests, please note their names on the form. In the event you need to cancel your reservation, a refund will be made provided notice of cancellation is received in our office by June 5.  There is no charge for members of the press.

We look forward to seeing you at our next breakfast program on Tuesday, June 9.

“Legal Aspects of the Fight Against Terrorism” (day one of a two day “Ivy to Olives Joint Academic Symposium” held at Ono Academic College in Israel (June 1, 2009)

Please see the attached flyer for the very interesting lineup of topics and speakers.

3. Forthcoming Scholarship

United States Detention Operations in Afghanistan and the Law of Armed Conflict

Matthew C. Waxman
Columbia Law School

Columbia Public Law Research Paper No. 09-202
Israel Yearbook on Human Rights, Vol. 39, 2009

Abstract:
Looking back on US and coalition detention operations in Afghanistan to date, three key issues stand out: one substantive, one procedural and one policy. The substantive matter – what are the minimum baseline treatment standards required as a matter of international law? – has clarified significantly during the course of operations there, largely as a result of the US Supreme Court’s holding in Hamdan v. Rumsfeld. The procedural matter – what adjudicative processes does international law require for determining who may be detained? – eludes consensus and has become more controversial the longer the Afghan conflict continues. And the policy matter – in waging counterinsurgency warfare, how do foreign military forces transition military detention operations to effective civilian institutions? – has emerged as a critical strategic priority for which the law of armed conflict provides little instructive guidance.

After briefly outlining the basis of US and coalition detention operations, this article addresses each of these issues in turn. It concludes with some general observations about the convergence of law and strategy.

“Defining Armed Conflict”

Journal of Conflict Security Law, Vol. 13, pp. 393-400, Winter 2008
Notre Dame Legal Studies Paper No. 09-09

MARY ELLEN O’CONNELL, Notre Dame Law School

Email: MaryEllenOConnell@nd.edu

Within hours of the 9/11 attacks in the United States, President George W. Bush declared ?a global war on terrorism?. Experts around the world assumed this declaration was a rallying cry, a rhetorical device to galvanize the nation to serious action. By November 2001, however, the evidence began to mount that the President was ordering actions that could only be lawful in a de jure armed conflict: targeting to kill without warning, indefinite detention without trial, and search and seizure on the high seas without consent. It was difficult to criticize these actions on the basis of international law, however, given that international law contained no widely accepted definition of armed conflict. By May 2005, the International Law Association determined that there was a pressing need for a report on the meaning of armed conflict supported by international law. The Use of Force Committee presented its Initial Report on the Meaning of Armed Conflict in International Law at the Rio de Janeiro biennial meeting of the ILA. The Report concludes that all armed conflicts have as minimum two necessary characteristics: 1.) the presence of organized groups 2.) engaged in intense armed fighting. The Report indicates that while the United States has been engaged in an armed conflict in Afghanistan and in Iraq since 9/11, it has not been engaged in a global armed conflict. The Initial Report will be expanded for presentation in final form in 2010 at The Hague biennial meeting.

“Share and Share Alike: Intelligence Agencies, Information Sharing, and National Security”

George Washington Law Review, Forthcoming
George Mason Law & Economics Research Paper No. 09-24

NATHAN ALEXANDER SALES, George Mason University School of Law
Email: nsales1@gmu.edu

Why don’t intelligence agencies share information with each other? This article attempts to answer that perennially vexing question by consulting public choice theory as well as insights from other legal disciplines. It begins by surveying arguments for and against expanded sharing, examples of sharing failures, and recent reforms intended to encourage sharing. Next, the article considers why intelligence agencies see information sharing as a threat to the various values they maximize, such as influence over senior executive branch policymakers and autonomy to pursue agency priorities. It then proposes a series of analytical frameworks that enrich our understanding of why agencies resist sharing: At times data exchange resembles an intellectual property problem, sometimes it looks like an antitrust problem, and sometimes it looks like an organizational theory problem. Finally, the article examines whether the solutions suggested by these other disciplines can be adapted to the problems of information sharing.

Boumediene‘s Quiet Theory: Access to Courts and the Separation of Powers”

Notre Dame Law Review, Vol. 84, 2009
American University, WCL Research Paper No. 2009-08

STEPHEN I. VLADECK, American University – Washington College of Law
Email: svladeck@wcl.american.edu

At the core of Justice Kennedy’s majority opinion in Boumediene v. Bush are his repeated suggestions that habeas corpus is an integral aspect of the separation of powers, and that, as such, the writ remains relevant even when the individual rights of those who would seek its protections are unclear. And whereas some might view these passages as little more than rhetorical flourishes, it is difficult to understand the crux of Kennedy?s analysis – of why the review available to the Guantanamo detainees failed to provide an adequate alternative to habeas corpus – without understanding the significance of his separation-of-powers discussion. At least where habeas corpus is concerned, it seems clear from Boumediene that the purpose of judicial review, in Justice Kennedy’s view, appears to be as much about preserving the role of the courts as it is about protecting the individual rights of the litigants.

In this article, I take on this quiet theory behind Kennedy’s opinion and ask whether it might have applications beyond the unique context of habeas corpus, especially with regard to the more general constitutional right of access to the courts. As I argue, there is actually much to gain from re-conceptualizing access to courts as being as much about protecting the courts as it is about vindicating the individual rights of litigants, a theme largely reflected (although since forgotten) in the judicial decisions giving rise to modern access-to-courts jurisprudence. Thus, going forward, Boumediene might do more than just answer the circumstance-specific question about habeas corpus rights for non-citizens detained as enemy combatants; it might provide the starting point for a new theory of access to the federal courts in particular that could allow us to rethink a number of tenets of federal courts doctrine.

“The Problem of Jurisdictional Non-Precedent”

Tulsa Law Review, Vol. 44, 2009
American University, WCL Research Paper No. 2009-09

STEPHEN I. VLADECK, American University – Washington College of Law
Email: svladeck@wcl.american.edu

Most critiques of the Supreme Court’s June 2008 decision in Boumediene v. Bush (including Justice Scalia’s dissent in the same) have at their core the argument that Justice Kennedy’s majority opinion is inconsistent with prior precedent, specifically the Supreme Court’s 1950 decision in Johnson v. Eisentrager A closer read of Eisentrager, though, reveals a surprisingly unclear opinion by Justice Jackson, that seems to go out of its way to reach various issues on the merits even after suggesting that the federal courts lacked jurisdiction over habeas petitions filed by 22 Germans convicted of war crimes by a U.S. military tribunal in China. Put another way, it is hard to understand the scope of the rule that the Eisentrager majority thought it was enunciating, and therefore the extent to which it should have also applied in the Guantanamo cases.

This problem is not unique to Eisentrager, though. In the Court’s June 2008 decision in Munaf v. Geren, it also brushed aside a post-World War II precedent — the 1948 decision in Hirota v. MacArthur, again because it was not clear exactly which facts the earlier jurisdiction-precluding decision relied upon. As I explore in this essay — part of the Tulsa Law Review’s annual Supreme Court review — these decisions are emblematic of a judicial methodology that is no longer in vogue, thanks to the Supreme Court’s 1998 decision in Steel Co. v. Citizens for a Better Environment. After Steel Co., federal courts can no longer reach issues over which they lack jurisdiction, and so are far more careful to resolve jurisdictional questions at the outset, before moving on (where possible) to the merits.

But what effect does Steel Co. have on prior precedent, where the Court’s decision leaves unclear how much the merits actually mattered? As I explore in this essay, Steel Co. may itself compel that contemporary courts narrowly construe jurisdiction-precluding rules in cases like Eisentrager and Hirota, on the assumption that those courts would not have analyzed questions the answers to which could not have mattered. Reasonable people may disagree about whether Boumediene and Munaf were rightly decided, but the critical point for present purposes is that both were decided on jurisprudential clean slates.

“ASAT-Isfaction: Customary International Law and the Regulation of Anti-Satellite Weapons”

Michigan Journal of International Law, Vol. 30, 2009
Georgetown University Law Center, Public Law and Legal Theory Research Paper No. 09-09

DAVID A. KOPLOW, Georgetown University – Law Center
Email: koplow@law.georgetown.edu

This article asserts the thesis that customary international law (CIL), even in the absence of any new treaty, already provides a legal regime constraining the testing and use in combat of anti-satellite (ASAT) weapons. This argument, if validated, is important for both legal and public policy considerations: the world (especially, but not only, the United States) has grown increasingly dependent upon satellites for the performance of a wide array of commercial and military functions. At the same time, because of this growing reliance (and hence vulnerability), interest has surged in developing novel systems for attacking a potential enemy’s satellites – ASAT technology has been tested by the United States, Russia, and China, and other countries may soon shoot up that same dangerous trajectory. Oddly, the United States has consistently opposed international efforts to negotiate an arms control solution to this problem. Any comprehensive treaty would certainly be difficult to reach (there are numerous complicated issues of definitions, scope, and verification to surmount) but the American stance (not only during the Bush Administration) has been that we should not even try, because “there is currently no arms race occurring in outer space.”

This article turns that resistance on its head, by asking whether customary international law, even without any formal treaty on point, already imposes meaningful constraints upon ASAT activities. To develop the argument, it analyzes three strands of CIL: first, “general” customary international law, which has long been recognized as an authoritative, albeit complex, source of binding rules; second, the specialized legal regime incorporated into the law of armed conflict, which imposes its own strictures, fully applicable to conventional warfare, but not yet applied extra-terrestrially; and finally, another realm of specialized CIL, the emerging jurisprudence governing international environmental law. My conclusion is that there is already a meaningful ASAT-control regime, created by CIL even without codification in a new treaty. This is not, to be sure, a fully comprehensive legal web, and there would still be plenty of additional scope for a new treaty to enhance and extend the legal regime. But the conclusion is that treaty negotiators would not be drafting on a complete tabula rasa; an incipient legal order is already in place.

“Constitutional Canaries and the Elusive Quest to Legitimize Security Detentions in Canada”

Case Western Reserve Journal of International Law, Vol. 40, pp. 531-560, 2009

MAUREEN T. DUFFY, McGill Centre for Human Rights and Legal Pluraliem
Email: maureen.duffy@mail.mcgill.ca
RENE PROVOST, McGill University – Faculty of Law
Email: rene.provost@mcgill.ca

Canada, like many other countries, has struggled with questions of how to prevent terrorist attacks without undermining human rights. One tool that gained prominence in recent years involves preventive detention under “security certificates.” This measure, undertaken through immigration legislation, applies to non-citizens found inadmissible for one of a number of reasons, including a suspicion that they endanger national security. Such detentions have ignited considerable controversy within Canada. In February 2007, the Supreme Court of Canada found the existing scheme unconstitutional. While the Court did not find the scheme to be discriminatory, in spite of its application only to non-citizens, it did find that the potential use of secret evidence contravened procedural fairness. Canada subsequently passed legislation, creating a special advocate system. This article argues that continued problems exist with these detentions, including questions of discrimination and concerns about the fairness of the new special advocate system.

“International Cooperation in Homeland Security”

U of Utah Legal Studies Paper No. 057-08-09

AMOS N. GUIORA, University of Utah – S.J. Quinney College of Law
Email: guioraa@law.utah.edu

Terrorism against the United States, post-9/11, reaches far beyond the U.S. borders. In order to effectively prevent and react to terrorism within the homeland, the U.S. must think of security internationally. International security efforts touch on key issues such as travel security, border control, immigration, intelligence, and financing terrorism. This article examines the U.S. effort at international cooperation in homeland security by examining security and threat assessment in order to analyze current developments and necessary progress moving forward. Further, this article explores comparative efforts at international cooperation in homeland security by examining Canada, Japan, and the E.U. in terms of security and threat assessment. Finally, this article offers recommendations and articulates criteria by which the U.S. can improve vital efforts at international cooperation in homeland security.

To ensure effective counterterrorism, the U.S. must follow a two step process. First, the U.S. must take measures to protect the homeland. Those measure include: promoting travel security by implementing sophisticated technology; promoting border security by securing the Northern border; implementing intelligence sharing between agencies; creating a coordinated plan to promote travel and border security; undergoing training and simulation, and finally; ensuring institutionalized continuity from one Administration to the next.

After taking action to protect the homeland, the U.S. must use these factors as a foundation on which to establish international cooperation. To establish effective international cooperation in homeland security, the U.S. must take measures including the following: forging international partnerships; sharing intelligence related to travel security; creating a coordinated international security plan; running international training and simulation exercises, and finally; implementing international institutionalized continuity.

“Anticipatory Self-Defence and International Law – A Re-Evaluation”

Journal of Conflict and Security Law, 2008
U of Utah Legal Studies Paper No. 057-08-10

AMOS N. GUIORA, University of Utah – S.J. Quinney College of Law
Email: guioraa@law.utah.edu

Traditional state v. state war is largely a relic. How then does a nation-state protect itself – preemptively – against the unseen enemy? Existing international law – the Caroline Doctrine, UN Charter Article 51, Security Council Resolutions 1368 and 1373 – do not provide sufficiently clear guidelines regarding when a state may take preemptive or anticipatory action against a non-state actor. This article proposes rearticulating international law to allow a state to act earlier provided sufficient intelligence is available. After examining international law, this article proposes a process-based “strict-scrutiny” approach to self-defense. Under this approach, the executive will have to convince a court, based on relevant, reliable, viable, and corroborated intelligence, that preemptive action is appropriate. This process leads to a check on the power o the executive by placing a judicial check on preemptive action, consequently establishing objective legal criteria for operational counterterrorism.

Muge Kinacioglu, Department of International Relations, Bilkent, University, Turkey, wrote a response to my article titled, “A Response to Amos Guiora: Reassessing the Parameters of the Use of Force in the Age of Terrorism: Pre-emptive Action and International Law.” Tarcisio Gazzini, Faculty of Law, VU University, Amsterdam, also wrote a response titled, “A Response to Amos Guiora’s Article on Pre-Emptive Self-Defence Against Non-State Actors.”

“An Exchange on Law and Israel’s Gaza Campaign”

ABA National Security Law Report, Vol. 31, pp. 1-6, February 2009
U of Utah Legal Studies Paper No. 057-09-01

AMOS N. GUIORA, University of Utah – S.J. Quinney College of Law
Email: guioraa@law.utah.edu
DAVID LUBAN, Georgetown University – Law Center
Email: david.luban@gmail.com

This exchange on Operation Cast Lead – Israel’s December 2008-January 2009 campaign in the Gaza Strip – includes essays by Guiora and Luban, followed by Guiora’s response to Luban’s essay and Luban’s response to Guiora’s. Luban argues that the Gaza campaign violated both the jus ad bellum and jus in bello proportionality principles. He also argues that the Hamas civil administration were not lawful targets under Israel’s own interpretation of the law of armed conflict. Guiora argues that terrorism changes the landscape of armed conflict and requires a reconfiguration of international law. Under this reconfiguration, an entire terrorist organization may properly be targeted.

Attachments:


AG opinion on constitutionality of proposed OLC reporting act; forthcoming scholarship

January 13, 2009

1.  Attorney General Mukasey, Constitutionality of the OLC Reporting Act of 2008 (Nov. 14, 2008) (made public 1/12/09)

OLC has released a memorandum from AG Mukasey to the Senate Majority Leader, from November 2008, declaring his view that proposed legislation requiring public disclosure of OLC memos in certain scenarios would be unconstitutional.  The memo is posted here: http://www.usdoj.gov/olc/2008/olc-reporting-act.pdf

2. Forthcoming scholarship

“True Believers at Law: National Security Agendas, the Regulation of Lawyers, and the Separation of Powers”

Roger Williams University School of Law Legal Studies Research Paper Series

PETER MARGULIES, Roger Williams University School of Law
Email: pmargulies@rwu.edu

Post-September 11 legal events have demonstrated that ideological agendas distort the deliberation required for sound advice about national security. Legal issue entrepreneurs who market a theory without context exalt short-term interests and encourage executive unilateralism. These perils have emerged in a number of recent developments, including the torture memos drafted by the Justice Department’s Office of Legal Counsel (OLC) and the destruction of CIA interrogation tapes. Read the rest of this entry »


forthcoming scholarship

December 15, 2008

* Forthcoming scholarship

Foreign Affairs Originalism in Youngstown’s Shadow

St. Louis University Law Journal (Vol. 53, 2008)

Stephen I. Vladeck

American University Washington College of Law

In An Originalism for Foreign Affairs?, Professor Ingrid Wuerth argues that originalism, under a number of different conceptualizations, is an awkward fit in the field of foreign affairs. In one sense, as Professor Wuerth suggests, originalism fails to answer many of the central questions of foreign affairs scholarship. In another sense, certain foreign affairs questions may, in her words, undermine the positive case for originalism. Either way, Professor Wuerth concludes, originalists should pay more attention to foreign affairs, and foreign affairs scholars should pay more attention to the competing methodologies of contemporary constitutional interpretation. Read the rest of this entry »


written opinion in Boumediene v. Bush

November 20, 2008

* Judge Leon’s written opinion in Boumediene v. Bush (D.D.C. Nov. 20, 2008)

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2004cv1166-276

Here is a brief overview of the opinion:

Judge Leon framed the question as follows, citing the Case Management Order he previously had issued: had the government presented proof sufficient to establish by a preponderance of the evidence that the detainees were part of or supporting al Qaeda, the Taliban, or associated forces engaged in hostilities against the U.S. or its allies (including persons who committed belligerent acts or who “directly supported” hostilities).

The government argued that all 6 men planned to go to Afghanistan to fight against the US.  It also alleged that one of the men – Belkacem Bensayah – was an al Qaeda member who served a “facilitator” function (i.e., that he recruited fighters and assisted their transit to Afghanistan).  The government did not at this stage still contend that the men had plotted to attack the US embassy in Bosnia, nor that Bensayah was a financier as opposed to a “facilitator”. Read the rest of this entry »