forthcoming scholarship

* forthcoming scholarship

“Square Peg in a Round Hole: Government Contractor Battlefield Tort Liability and the Political Question Doctrine “

Chris Jenks (Judge Advocate General’s Corps)

Abstract:

Recent assertions of the political question doctrine by battlefield contractor defendants in tort litigation have brought new life to the doctrine while raising new questions. The lawsuits stem from incidents in both Iraq and Afghanistan and include plaintiffs ranging from local nationals suing contract interrogators and  interpreters, to contract employees suing another contractor following insurgent attacks, to U.S. service members suing contractors after vehicle and airplane crashes. The lawsuits involve tort claims, which on their face do not conjure up images of a constitutional power struggle, but in at least fifteen cases thus far contractor defendants have asserted the political question doctrine as a defense. The political question doctrine addresses whether the judiciary should review  government action or decisions and yet contractors are asserting the doctrine in cases where the government is not a named party and has remained conspicuously silent. This article analyzes the confused application of the political question doctrine to battlefield related contractor tort litigation and proposes a methodology to bring clarity to future decisions. Absent a more rigid analytical approach by the judiciary and a change in the government’s attitude, the confusion surrounding the political question doctrine and the inconsistency of its application to the inevitable future contractor cases will only grow.

“From Nuclear War to Net War: Analogizing Cyber Attacks in International Law”

Berkley Journal of International Law (BJIL), Vol. 25, No. 3, 2009

SCOTT SHACKELFORD, University of Cambridge Department of Politics and International Studies, Stanford Law School
Email: sjshacke@gmail.com

On April 27, 2007, Estonia suffered a crippling cyber attack launched from outside its borders. It is still unclear what legal rights a state has as a victim of a cyber attack. For example, even if Estonia could conclusively prove that Russia was behind the March 2007 attack there is no clear consensus on how Estonia could legally respond, whether with armed force, its own cyber attack, or some other measure. The scholarly literature dealing with these questions, as well as the ethical, humanitarian, and human rights implications of information warfare (IW) on national and international security is scarce. Treatments of IW outside the orthodox international humanitarian law (IHL) framework are nearly non-existent. This underscores the tension between classifying cyber attacks as merely criminal, or as a matter of state survival calling for the same responses as conventional threats to national security.

International law has been slow to adapt. The facts on the ground, and the widespread, amorphous use and rapid evolution of the internet in many ways challenge state sovereignty. I will advocate that the best way to ensure a comprehensive regime for cyber attacks is through a new international accord dealing exclusively with cyber security and its status in international law. Yet, the international community lacks the political will to tackle this issue directly. Until such an accord becomes politically viable, it is critical to examine how existing treaty systems may extend to cover the novel facts presented by cybe attacks. Together, existing treaties form a dual track approach to cyber attacks – one that is available for cyber attacks that do not rise to the level of an armed attack, and another that is activated once an armed attack occurs. To that end this paper will examine the most apt analogues in international law to form an appropriate legal regime for the various types of cyber attacks ? whether it is humanitarian law (laws of war), human rights law (regulation of nation states behavior), or some novel combination of these and other treaty systems. In framing this regime, it will be argued that cyber attacks represent a threat to international peace and security as daunting and horrific as nuclear war. Yet the nuclear non-proliferation model is not a useful analogy since the technology necessary to conduct IW is already widespread in the international community. Instead, other analogies will rely on communications and cyber law, space law, and the law of the sea. The main failings of existing international treaties that touch on cyber law though are that most do not carry enforcement provisions. Nor do they specify how the frameworks change or fall away entirely during an armed attack. Nevertheless, regardless of whether or not cyber attacks fall below the threshold of an armed attack these bodies of law have a role to play in forming an appropriate regime. The cyber attack on Estonia in April, 2007, presents an example of the dire need for clarity in the international law of non-conventional warfare using modern technology.

“Counter-Terrorism Law and Inchoate Offences”

GABRIEL HALLEVY, Ono Academic College, Faculty of Law
Email: hallevy@ono.ac.il

The modern definitions of the inchoate offences are well known in the criminal law since the Middle Ages both in European-Continent legal systems and in the English Common Law. They were mostly developed by the case-laws of the Star Chamber Court, which was abolished in 1640. The inchoate offences include three basic offences: Attempt, Conspiracy and Solicitation, but different legal systems defined some other offences as inchoate, such as the Aider and Abettor in Britain after the full validation of the Serious Crimes Act, 2007, c.27, s.44. In this paper it is argued, that there is a very intensive interaction between the fight against terrorism and inchoate offences. The fight against terrorism effects the definition of inchoate offences, and inchoate offences are used as a major instrument of criminal law in the legal fight against terrorism.

“Letters of Marque and Reprisal: The Constitutional Law and Practice of Privateering”

Journal of Maritime Law and Commerce, Vol. 40, No. 2, 2009

THEODORE M COOPERSTEIN, affiliation not provided to SSRN

The United States Constitution grants to the Congress the power, among others, to issue ?Letters of Marque and Reprisal.? Although the practice seems to have fallen into disuse in this century, it was an important tool of national power for the federal government created by the Framers, who placed great import on the federal government?s role in protecting international commerce and in enforcing international law.

Privateering played a significant role before and during the Revolutionary War, and it persisted in American history as an economical way to augment naval forces against an enemy in wartime. A significant outgrowth of the practice of privateering was the body of law resulting from prize court adjudications. United States courts, in deciding title to ships and goods taken prize, determined issues both of domestic and customary international law. In this manner the federal courts significantly shaped the role of international law in the United States jurisprudence as well as assured the role of the United States in the ongoing development of customary international law. Case law concerning prizes and privateering is accordingly a useful vehicle to examine the interplay of U.S. constitutional law and customary international law as they both developed through the Nineteenth Century.

Changes in the methods of warfare during the Twentieth Century diminished the role of privateering. But the Congressional authority to issue Letters of Marque and Reprisal remains. As a means to commission private actors to augment national forces in international crises, the Letter of Marque and Reprisal could yet have modern applications. It remains for innovative executive and legislative experiment to revive the ancient practice in a form befitting modern international problems.

“Civilian Military Contractors on Trial: The Case for Upholding the Amended Exceptional Jurisdiction Clause of the Uniform Code of Military Justice”

Texas International Law Journal, Vol. 44, No. 1, 2008

DAVID L. SNYDER, Fordham University – School of Law
Email: snyderdl@gmail.com

“I call it a massacre,” said a Kurdish witness to the afternoon carnage in the streets of Baghdad, “[t]hey used the law of the jungle.” American soldiers and military officials were equally appalled at the aftermath: the plume of smoke over Nisour Square having dissipated, only the bullet-riddled, lifeless bodies of unarmed civilians remained. A banner proclaiming “[t]he Creators of Life are always Victorious” fluttered eerily overhead, an optimist’s hope for Iraqi reconstruction diminished by the tumult below. This catastrophe was not, however, the work of terrorists. Rather, the deaths occurred at the hands of employees of Blackwater USA, a private security company under contract with the U.S. Department of State, whose primary mission in Iraq is to protect U.S. diplomats.

Although five Blackwater guards were indicted in December 2008 for their roles in the attacks, private military and security firms generally continue to operate with relative impunity amidst regulatory frameworks that are porous, impracticable, and rarely utilized. The solution with the greatest enforcement capability – a 2006 amendment to the Uniform Code of Military Justice (UCMJ), which extends military courts-martial to civilian contractors participating in contingency operations – faces constitutional questions and, as of the time of this writing, a failure of executive branch implementation. The resulting lacuna is startling: there are nearly 160,000 private American contractors working in Iraq, an estimated 30,000 of which provide armed military services, but there has currently been only one prosecution for an act of violence.

This Article argues that the recent change in the UCMJ should survive constitutional attack, and that subjecting employees of private military firms to courts-martial is the only sensible and practical means to ensure battlefield discipline and accountability. Part II of this Article discusses the background of the use of private military firms by the United States, and traces the development of the domestic legal framework, culminating in the recent UCMJ amendment, applicable to the industry. Part III analyzes the constitutional issues presented by the new UCMJ provision, which subjects certain civilians to the jurisdiction of military courts-martial. Finally, Part IV argues that courts facing the inevitable challenge to the new UCMJ provision should uphold the law on a number of bases. First, the founding generation’s fear of broadly subjecting civilians to draconian military justice is not applicable to the contemporary courts-martial system. Second, the Constitution does not foreclose military trials of certain civilians; the historical record details numerous occasions, dating back to the Revolutionary War, in which civilians with close connections to the armed services were held accountable by courts-martial. Finally, a late twentieth-century opinion from the Court of Military Appeals, which effectively overturned generations of precedent and principle, was wrongly decided and anomalous, and should not foreclose current legislative attempts to hold civilians who accompany the armed forces during contingency operations responsible for illegal conduct.

Holder v. Humanitarian Law Project (cert petition in 2339B case); forthcoming scholarship

1. Holder v. Humanitarian Law Project, No. 08-1498 (S. Ct.) (petition for certiorari)

I was remiss not to circulate this much earlier.  On June 4, the Justice Department petitioned for cert in the never-ending 9^th Circuit civil litigation challenging the constitutionality of the 1996 material support law, 18 USC 2339B.  The petition is posted here: http://www.scotusblog.com/wp/wp-content/uploads/2009/06/us-petition-humanitarian-6-4-09.pdf.  HLP’s opposition brief is due next Monday, July 6^th.  This one most certainly bears watching.

2. Forthcoming scholarship

“Targeted Killing in U.S. Counterterrorism Strategy and Law”

Kenneth Anderson, Professor of Law, Washington College of Law, American University

The Brookings Institution, Georgetown University Law Center and the Hoover Institution

Forthcoming in Legislating the War on Terror An Agenda for Reform (Benjamin Wittes, ed.)

It is a slight exaggeration to say that Barack Obama is the first president in American history to have run in part on a political platform of targeted killings—but not much of one. During the campaign, he openly sought to one-up the Republican nominee, Sen. John McCain, in his enthusiasm for the use of targeted strikes in Pakistan against al Qaeda figures. “You know,” he said in his speech at the Democratic National Convention, “John McCain likes to say that he’ll follow [Osama] Bin Laden to the Gates of Hell, but he won’t even go to the cave where he lives.”[i] That he would, as president, follow bin Laden to his cave, with or without the cooperation of the Pakistani government, he made perfectly clear. “If we have actionable intelligence about high-value terrorist targets and President [Pervez] Musharraf won’t act, we will,” he said in another speech.[ii] Indeed, while he criticized President Bush for being too aggressive in many aspects of counterterrorism, with respect to targeted killings, his criticism was the polar opposite: “The Bush administration has not acted aggressively enough to go after al Qaeda’s leadership,” he said. “I would be clear that if Pakistan cannot or will not take out al Qaeda leadership when we have actionable intelligence about their whereabouts, we will act to protect the American people. There can be no safe haven for al Qaeda terrorists who killed thousands of Americans and threaten our homeland today.”[iii]

Obama did not take long, on assuming office, to begin keeping his promise. On January 23, 2009 a mere three days into his presidency, strikes by Predator drones in the tribal areas of Pakistan destroyed two compounds and killed numerous people, reportedly including a high-value target.[iv] Strikes continued, even expanded, over the successive months, and administration officials made clear that they had no plans to curtail them—even as they reined in coercive interrogations and announced the closure of Guantánamo Bay.[v]

Obama was right as a candidate and is correct as president to insist on the propriety of targeted killings—that is, the targeting of a specific individual to be killed, increasingly often by means of high technology, remote-controlled Predator drone aircraft wielding missiles from a stand-off position. The strategic logic that presses toward targeted stand-off killing as a necessary, available and technologically advancing part of counterterrorism is overpowering. So too is the moral and humanitarian logic behind its use. Just as crucial programs of Predator-centered targeted killing are underway now in Afghanistan and, with increasing international controversy, Pakistan, over the long term these programs of stand-off targeted killing will be an essential element in United States counterterrorism into the future—and with targets having little or nothing to do with today’s iteration of the war on terror.[vi] Future administrations, even if they naturally prefer to couch the matter in softer terms, will likely follow the same path. Even if the whole notion seems to some disturbingly close to arbitrary killing, not open combat, it is often the most expedient—and, despite civilian casualties that do occur, most discriminatingly humanitarian—manner to neutralize a terrorist without unduly jeopardizing either civilians or American forces.

But there’s a paradox in Obama’s embrace of targeted killing: Even as the strategic and humanitarian logic for it increases in persuasiveness, the legal space for it and the legal rationales on which it has been traditionally justified are in danger of shrinking. They are at risk of shrinking in ways that might surprise members of Congress and the Obama Administration. And they are at risk of shrinking through seemingly innocuous, unrelated legal policy actions that the Obama Administration and Congress might be inclined to take in support of various political constituencies, usually related to broadly admirable goals of human rights and international law.

American domestic law—the law codifying the existence of the CIA and defining its functions—has long accepted implicitly at least some uses of force, including targeted killing, as self-defense toward ends of vital national security that do not necessarily fall within the strict terms of armed conflict in the sense meant by the Geneva Conventions and other international treaties on the conduct of armed conflict. Categories of the use of force short of armed conflict or war in a juridical sense—by intelligence services such as the CIA, for example—or by military agents in furtherance of national self defense and vital security interests, yet outside of the legal condition of armed conflict, date back in codified law to the founding of the CIA and, in state practice by the United States and other sovereigns, far further still. Yet as a matter of legal justification, successive administrations have already begun to cede this ground. Even the Bush Administration, with its unrivaled enthusiasm for executive power, always sought to cast its killing targets as the killing of combatants in what it legally characterized as armed conflicts, governed by the laws of war on the conduct of hostilities, known as “international humanitarian law” (IHL). This concession, however, if followed by the Obama Administration and beyond, will likely reduce the practical utility of a policy and security tool of both long-standing provenance and proven current value. It will likely reduce the flexibility of the United States to respond to emerging threats before they ripen into yet another war with non-state terrorists, and it will reduce the ability of the United Sates to address terrorist threats in the most discriminating fashion advancing technology permits.

At this moment in which many policymakers, members of Congress and serious observers see primarily a need to roll back policies and assertions of authority made by the Bush Administration, any call for the Obama Administration and Congress to insist upon powers of unilateral targeted killing and to claim a zone of authority outside of armed conflict governed by IHL that even the Bush Administration did not claim must seem at once atavistic, eccentric, myopic and perverse. Many will not much care that such legal authority already exists in international and U.S. domestic law. Yet the purpose of this chapter is to suggest that, on the contrary, the uses to which the Obama Administration seeks to put targeted killing are proper, but they will require that it carefully preserve and defend legal authorities it should not be taking for granted and that its predecessors, including the Bush Administration, have not adequately preserved for their present day uses.

People who threaten serious harm to the United States will not always be al Qaeda, after all. Nor will they forever be those persons who, in the words of the Authorization for the Use of Military Force (AUMF), “planned, authorized, committed or aided” the attacks of September 11.[vii] As I will explain, it would have been better had the Bush and Clinton Administrations, for their parts, formulated their legal justifications for the targeted uses of force around the legal powers traditionally asserted by the United States: the right of self-defense, including the right to use force even in circumstances not rising to the level of an “armed conflict” in order to have firmly fixed in place the clear legal ability of the United States to respond as it traditionally has. Although the United States still has a long way to go to dismember al Qaeda, its affiliates and subsidiaries, although Osama bin Laden and key al Qaeda terrorist leaders remain at large, and although the President of the United States still exercises sweeping powers both inherent and granted by Congress to use all national power against the perpetrators of September 11, time moves on. New threats will emerge, some of them from states and others from non-state actors, including terrorist organizations. Some of those new threats will be new forms of jihadist terrorism; others will champion new and different causes. Even now, Islamist terror appears to be fragmenting into loose networks of shared ideology and aspiration rather than tightly vertical organizations linked by command and control.[viii] It will take successive feats of intellectual jujitsu to cast all of the targets such developments will reasonably put in the cross hairs as, legally speaking, combatants.

Yet the problem is still deeper and more immediate than that, for the accepted space for targeted killings is eroding even within what a reasonable American might understand as the four corners of our conflict with al Qaeda. In many situations in which any American president, Obama certainly included, would want to use a targeted killing, it is unclear to some important actors—at the United Nations, among our allies, among international law scholars, and among NGO activists—as a matter of international law that a state of armed conflict actually exists or that a targeted killing can qualify as an act of self-defense. The legal situation, therefore, threatens to become one in which, on the one hand, targeted killing outside of a juridical armed conflict is legally impermissible and, on the other hand, as a practical matter, no targeted killing even within the context of a “war” with al Qaeda is legally permissible, either.

Congress’s role in this area is admittedly a peculiar one. It is mostly—though not entirely—politically defensive in nature. After all, the domestic legal authorities to conduct targeted killings and other “intelligence” uses of force have existed in statutory form at least since the legislation that established the Central Intelligence Agency in 1947 and in other forms long pre-dating that.[ix] The problem is that although domestic legal authority exists for the use of force against terrorists abroad, currents are stirring in international law and elsewhere that move to undermine that authority. Powerful trend and opinion-setting—so-called “soft law”—currents are developing in ways that, over time, promise to make the exercise of this activity ever more difficult and to create a presumption, difficult to overcome, that targeted killing is in fact both illegitimate and, indeed, per se illegal except in the narrowest of war-like conditions. The role of Congress is therefore to reassert, reaffirm, and reinvigorate the category as a matter of domestic law and policy, and as the considered, official view of the United States as a matter of international law.

“Great Power Security”

Chicago Journal of International Law, 2009
U of St. Thomas Legal Studies Research Paper No. 09-10

ROBERT J. DELAHUNTY, University of St. Thomas School of Law (Minnesota)
Email: RJDELAHUNTY@stthomas.edu
JOHN YOO, University of California at Berkeley School of Law
Email: YOO@LAW.BERKELEY.EDU

The change of administration in the US may have encouraged the belief that collective security will finally have its day. A conventional wisdom also seems to be emerging among many, if not most, academics in international law that the strengthening of the UN security system would advance international peace and security. Although the twenty-first century has brought radically different security threats from those that existed when the UN Charter was first written, many seem to believe that concentrating authority in the Security Council remains the most effective international legal process for the use of force.

Resurrecting the formal UN Charter rules on the use of force, however, would have the perverse effect of making international peace and security more difficult to achieve. Not only has that system failed in practice, but it is not designed to deal with the changing nature of warfare. The Charter?s use-of-force rules were addressed to the prevention or reduction of armed conflict between states. They are not adequate to deal with the more contemporary problems of civil war, mass violence against civilians at the hands of non-state terrorist groups, the protection of populations from genocide or other atrocities inflicted by their own governments, or the violence that is bred within failed or failing states.

What is needed is a new international legal regime for regulating the use of force by states against the threats of these varying kinds. The overarching goal of this regime should be the maintenance of international peace and stability through the pursuit of global welfare. Unlike the UN Charter system, which is designed to drive the use of force by states close to zero, a reconstructed international legal system should seek to produce the optimal level of force, thus allowing armed interventions for the purpose of preventing catastrophic harms.

The emergence of new great powers (China, the EU, and India, for example) and the re-emergence of older ones (such as Russia) have apparently begun to shift the post?Cold War world from unipolarity to multipolarity. Global peace and security in the future may no longer be underwritten by an (assumedly) ?hegemonic? US. Instead, the world may experience a return to the kind of great power politics that was prevalent in Europe before World War I (and arguably, throughout recorded human history). While we would not attempt to forecast how an emerging multipolar world would work, an explicit great power system could well ameliorate the collective action problems that the current UN Charter system exacerbates, and thus could advance global welfare.

“Letters of Marque and Reprisal: The Constitutional Law and Practice of Privateering”

Journal of Maritime Law and Commerce, Vol. 40, No. 2, 2009

THEODORE M COOPERSTEIN, affiliation not provided to SSRN

The United States Constitution grants to the Congress the power, among others, to issue ?Letters of Marque and Reprisal.? Although the practice seems to have fallen into disuse in this century, it was an important tool of national power for the federal government created by the Framers, who placed great import on the federal government?s role in protecting international commerce and in enforcing international law.

Privateering played a significant role before and during the Revolutionary War, and it persisted in American history as an economical way to augment naval forces against an enemy in wartime. A significant outgrowth of the practice of privateering was the body of law resulting from prize court adjudications. United States courts, in deciding title to ships and goods taken prize, determined issues both of domestic and customary international law. In this manner the federal courts significantly shaped the role of international law in the United States jurisprudence as well as assured the role of the United States in the ongoing development of customary international law. Case law concerning prizes and privateering is accordingly a useful vehicle to examine the interplay of U.S. constitutional law and customary international law as they both developed through the Nineteenth Century.

Changes in the methods of warfare during the Twentieth Century diminished the role of privateering. But the Congressional authority to issue Letters of Marque and Reprisal remains. As a means to commission private actors to augment national forces in international crises, the Letter of Marque and Reprisal could yet have modern applications. It remains for innovative executive and legislative experiment to revive the ancient practice in a form befitting modern international problems.

“Is ASIO a Good Judge of Character?”

Alternative Law Journal, June 2009

SUSAN GAIL HARRIS RIMMER, Centre fo International and Public Law
Email: susan.harris-rimmer@anu.edu.au

Character issues are of increasing importance in the role of the Australian Security and Intelligence Organisation (ASIO) in assessing the national security risk posed by aliens. For example, ASIO assessments underpinned the long-term detention of two Iraqi refugees on Nauru, and the deportation of US activist Mr Scott Parkin. This article considers how ASIO national security assessments are made, whether they constitute a form of character testing, and what accountability mechanisms are in place to challenge such assessments.

“The Commission’s New Border Package: Does It Take Us One Step Closer to a ‘Cyber-Fortress Europe’?”

CEPS Policy Brief No. 154, March 2008

ELSPETH GUILD, Radboud University Nijmegen – Faculty of Law, Kingsley Napley – Department of Immigration, The British Institute of International and Comparative Law, London School of Economics & Political Science (LSE)
Email: e.guild@jur.kun.nl
SERGIO CARRERA, Centre for European Policy Studies
Email: sergio.carrera@ceps.be
FLORIAN GEYER, Centre for European Policy Studies (CEPS)
Email: florian.geyer@ceps.eu

On 13 February 2008, the European Commission presented a new ‘Border Package’, setting out its vision of how to foster the further management of the EU’s external border. In assessing the desirability and feasibility of the new system, CEPS JHA specialists find the Commission’s proposal ill-considered and likely to have substantial counterproductive effects on the ground. They expect it to create the same sort of public relations problems as do similar US measures among a travelling public that finds itself increasingly the object of state suspicion, with no concrete reason or grounds.

“As Necessity Creates the Rule: Eisentrager, Boumediene and the Enemy – How Strategic Realities Can Constitutionally Require Greater Rights for Detainess in the Wars of the Twenty-First Century”

University of Pennsylvania Journal of Constitutional Law, Vol. 11, No. 2, 2009

MICHAEL BAHAR, JAG Corps, U.S. Navy
Email: mbahar@post.harvard.edu

With the 2006 publication of the Army-Marine Corps Counterinsurgency Field Manual, adhering to law has officially become a strategic imperative. Yet, court decisions and briefs still operate under the assumption that the application of law to the battlefield shackles the military. Even decisions like Boumediene, in which the Court granted Guantanamo Bay detainees habeas rights, does so apologetically. But this article demonstrates that law is not only a strategic necessity in today?s conflicts, but that the Constitution itself is a strategically pragmatic document that was designed to allow restrictions on individual rights when military necessity requires it – but only so long as that necessity exists. The Court must continue to exercise its constitutional duty to review executive claims of necessity, and as the strategic situation changes, so must the level of rights afforded to detainees. Accordingly, this article posits a battlefield jurisprudence. At the far end, only constitutional enemies, defined as those individuals connected to a state engaged in hostilities, can receive prisoner of war treatment, including indefinite detention. For all other individuals, the strategic or pragmatic Constitution affords lawmakers the opportunity to tailor rules to optimize the level of legal rights and thereby maximize the chances for a positive outcome for the U.S.

“Power Through Clarity: How Clarifying the Old State-Based Laws Can Reveal the Strategic Power of Law”

University of Pennsylvania Journal of International Economic Law, Vol. 30, No. 4, 2009

MICHAEL BAHAR, JAG Corps, U.S. Navy
Email: mbahar@post.harvard.edu

As the United States takes on the violent non-state actors, whose arsenals now exceed those of many states, policymakers and leaders should not give up on the ?old-fashioned? rules designed for relations among states. When properly clarified, the rules reveal powerful avenues for defending national security against non-state threats like Al Qaeda. While we cannot wage war against non-state actors and remain consistent with international and constitutional law, we can use force against those who take a direct part in hostilities, commit violent attacks outside the jurisdiction of any state, or engage in action sufficiently hostile to warrant immediate measures in individual or unit self-defense. Ultimately, force will not solve many of the great twenty-first century security challenges on its own – for national security must be a national exertion just as international security must be a global one – but, there is great cause to hope that in the next decades, a renewed embrace of the international and constitutional law of war will fully reveal the empowering abilities of both and the law?s ability to enhance the security of all.

“Balancing Formalist Methods with Functionalist Needs: Why Youngstown Remains the Most Viable Framework for Analyzing National Security Issues”

ELIZABETH BAHR, affiliation not provided to SSRN
Email: ebahr@gmu.edu
JOSH BLACKMAN, George Mason University – School of Law
Email: joshblackman@gmail.com

Part I of this paper briefly introduces the two competing schools of jurisprudential thought of formalism and functionalism. Part II analyzes Youngstown through both the formalist and functionalist lenses, and highlights how these lenses separately influenced the majority opinion of Justice Black and the more widely cited concurring opinion of Justice Jackson.

Part III carries the analysis from both Parts I and II, and discusses the influence of formalism and functionalism specifically on the areas of national security law where separation of powers issues are implicated. By analyzing the strengths and weaknesses of both formalism and functionalism as presented in separation of powers cases, Part III elucidates why it was inevitable that Justice Jackson?s functionalist and pragmatic concurring opinion in Youngstown prevailed as the most popular judicial prism through which courts dissect and analyze national security-related separation of powers issues.

Parts IV and V of this paper undertake an empirical analysis of some of the major cases decided since the 1952 Youngstown decision that have either explicitly or implicitly applied Justice Jackson?s three-tiered Youngstown framework. Since 1952, two types of Youngstown cases have emerged: those that fit neatly within the three-tiered framework – like the Dames & Moore scenario in Part IV – and those that must employ an implicit four-tiered framework in order to assess the limits of executive authority – such as the Guantanamo Detention cases in Part V. By thoroughly examining not only the published opinions, but also the appellate briefs of the petitioners and respondents, as well as any related amicus briefs or applicable legislative history, Parts IV and V expose the seemingly arbitrary nature of a functionalist method of judicial review, and show how this method of analysis – although it is flexible and allows judges to reach a necessary result – inevitably forces all courts to examine unreliable and malleable atextual sources. However, these Parts also show that the benefit to a functionalist framework in national-security cases, versus a more formalist framework is that the risk of judicial overreaching is avoided, and the precise scope of the President?s Article II powers continue to remain undefined, and thus, unimpeded by judicial precedent and available for future use should the national security of the United States ever require them.

forthcoming scholarship

“Designing Detention: A Model Law for Terrorist Incapacitation”

Forthcoming in the edited volume Legislating the War on Terror: An Agenda for Reform (summer 2009) (Brookings Institution) (Benjamin Wittes, ed.)

Benjamin Wittes, Senior Fellow, Brookings (Governance Studies)
Colleen A. Peppard

A consensus is beginning to emerge in the public and political spheres concerning the non-criminal detention of terrorist suspects. Over the past several years, non-criminal detention of Al Qaeda and Taliban captives at Guantánamo Bay, Cuba has sharply divided the American polity. Since the change in administration, however, it has become increasingly clear that the United States—even under a Democratic administration and with substantial Democratic majorities in both houses of Congress—is not going to abandon long-term detention of terror suspects and revert to a pure law enforcement model for incapacitating them, and it is not going to deal with the population of Guantánamo on the basis of freeing everyone whom it cannot prosecute. While the developing consensus still has many dissenters, the real question now is not whether America will have some detention system, but what sort of detention system, designed by whom, and using what rules.

In his recent speech at the National Archives on national security strategy and law, President Obama placed himself solidly within this emerging body of thought. He recognized that protecting our national security may require a non-criminal detention system for terrorists who cannot be tried but are too dangerous to release. And he made clear that this system needs to be fair and rigorous, supervised by the federal courts and created by an act of Congress. The president called for a system that has “clear, defensible, and lawful standards,” “fair procedures so that we don’t make mistakes,” and “a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified.”[i]

This paper, and the model legislative text we have attached as an appendix, is an effort to imagine such a regime at the granular level of actual legislative language. Much commentary and speculation has focused on the form that this new regime should take, rather than on the details of the many questions a detention regime will need to address. In the wake of the Supreme Court’s decision in Boumediene v. Bush,[ii] it is inevitable that federal judges will ultimately oversee any such detention system. Aside from this one general feature, however, the framework for the new system remains wide open in any number of respects.

The necessity of a preventative detention apparatus is the result of the unique nature of America’s conflict with transnational terrorist organizations and the limits of existing laws, both international and domestic, in responding to current threats. Defense Secretary Robert Gates recently testified that, after Guantánamo closes, there will remain a residual group of 50 to 100 Guantánamo detainees who cannot be tried yet are too dangerous to release.[iii] Yet the structural issues that generate this group actually implicate a larger population than those currently held at Guantánamo. Any new detention regime will need to address not only Guantánamo detainees but also similar detainees held elsewhere and other terrorists captured in the future outside of zones of active military operations.

The debate over what to do both with these residual Guantánamo detainees and with future captives in global counterterrorism operations has largely focused on which legal regime should serve as the reference guide. Commentators from across the spectrum have debated the merits of the law-of-war versus the criminal-law paradigms. But except in the broadest terms, this debate does little to advance the discussion on how exactly we should detain suspected terrorists—or, indeed, how we should define the category of suspected terrorists we mean to detain.

Meanwhile, advocates of a non-criminal detention scheme have tended to focus on the possibility of creating a national security court. Proponents argue that a national security court could bridge the divide between the law-of-war and criminal-justice paradigms, using elements of both to create a new system responsive to modern security threats. A national security court would be staffed by federal judges, buttressing the legitimacy of any detention regime. It could address issues such as the protection of classified information and the consideration of evidence which federal courts would normally exclude from criminal proceedings. Suggested national security court models have ranged from a stand-alone institution comparable to the Foreign Intelligence Surveillance Court to simply giving exclusive jurisdiction over detention cases to the federal district court in the District of Columbia. National security court advocates have suggested their use to oversee wartime detentions, to conduct trials for suspected terrorists, or both.

Yet national security court critics have argued that such proposals are significantly underdeveloped in both form and function. As one opponent writes, these proposals are “dangerously myopic proxies for larger debates that must be resolved first.”[iv] And the critics have a point. Many proposals for national security courts offer an institutional solution (creating a new court) for what is really a substantive set of problems: We, as a society, have not yet decided on the rules that will govern terrorist detentions. We have not yet decided the substantive standards, procedural elements, or rights of the accused within the processes in question. These issues are far more important than what building the adjudication will take place in or what to call the institution that will do the adjudication.

Given that there will be a residual group of Guantánamo detainees and that the president intends, as he put it, to “work with Congress to develop an appropriate legal regime” to govern their detentions, now is the time to answer these important questions. Jack Goldsmith, in a paper earlier this year, identified several key questions any detention legislation will have to address:[v]

• Who falls within the definition of the detainable class?
• What are the evidentiary and procedural rules?
• How much of the proceedings should take place in public?
• How often should detention decisions be reviewed?
• What rules should govern access to classified information?
• Should the court be a stand-alone institution?
• Should the court make first-order detention decisions or review detention decisions made by the military?

In this paper, we do not intend to argue for a preventative detention regime but, rather, to design one—to pose one set of answers to these questions with sufficient precision to produce actual legislative language. For those unconvinced of the necessity of such a law, there is a voluminous literature—including several works by one of the present authors.[vi] Our aim here is to elaborate on this previous work, on the work of other writers and scholars, and on subsequent legal developments in both U.S. courts and international jurisprudence in an effort to address Goldsmith’s questions head on. That is, we aim to begin the process of translating the emerging consensus that some detention apparatus is necessary into actionable legislation, to bring the debate down from a high-altitude argument over first principles to a more practically useful discussion of what a coherent approach to non-criminal terrorism detentions ought to look like. The attached model detention law is a further effort to translate the choices we put forward into actual legislative language, which we offer as a kind of discussion draft as Congress begins to contemplate President Obama’s request.

In addressing the design elements of a detention law, rather than arguing for one, we necessarily take as given several assumptions that many readers may still regard as premature. First, we assume that the laws of war do not offer an adequate legal framework for the detention of terrorist suspects. The detention system they envision relies on numerous premises which do not hold true for conflicts with global terrorist organizations—for example, that it is fairly simple to distinguish those who are participating in hostilities from those who are not, that the nationality of the participants should determine their rights, and that conflicts will end in an identifiable manner. Conflicts with terrorist organizations buck these premises, and therefore render the framework provided by the Geneva Conventions incomplete, and arguably ill-suited, for a long-term conflict with Al Qaeda.

Second, we assume that reliance solely on domestic criminal law to incapacitate transnational terrorists is untenable. The rules of procedure and evidence for criminal trials create too high a bar to detain terrorists arrested in the far corners of the earth under circumstances less than favorable for the collection of evidence. People against whom evidence may not come close to proving criminal culpability may still pose an unacceptable danger as a result of frankly-acknowledged allegiance to enemy organizations, evidence that would be inadmissible in criminal proceedings, or evidence that cumulatively falls short of proof beyond a reasonable doubt of criminal conduct. Efforts to shoehorn terrorism cases into the criminal justice system may also have serious negative repercussions for the conduct of domestic criminal trials more generally.[vii] We assume, in short, that the appropriate detention regime for counterterrorism purposes will draw on both the criminal-law and law-of-war traditions but is ultimately very much its own animal.

We proceed in five parts. In the first section, we lay out a general overview of the model detention statute we envision, how it would work mechanically and what the legal process under its terms would look like. In the second section, we discuss the model law’s definition of the class of people subject to detention. We next turn to the details of the procedures the model law would employ to adjudicate terrorist detentions. In the penultimate section, we discuss briefly the various accountability mechanisms we have sought to build into the model law. Finally, we conclude with a set of observations concerning how the model law would help insulate traditional wartime detentions from probing post-Boumediene judicial review and preserve a zone of executive discretion for such detentions.

“The Usefulness of a Negative Example: What We Can Learn About Evidence Rules from the Government’s Most Recent Efforts to Construct a Military Commissions Process”

William Mitchell Law Review, Vol. 35, No. 4, 2009

VICTOR HANSEN, New England Law
Email: vhansen@faculty.nesl.edu

The military commissions give us an opportunity to explore and reflect on whether the procedures to try alleged foreign terrorists or the procedures for some future military commission should follow the approach of the Bush administration. Looking back on the evidentiary scheme of the military commissions also gives us an opportunity to reflect on the application of the rules of evidence in military courts-martial and other criminal prosecutions.

To explore these issues, this paper will discuss the Uniform Code of Military Justice (UCMJ) and the Military Rules of Evidence. Why were these provisions created and how were they to be applied within the full spectrum of military operations? The paper will then compare the Military Rules of Evidence generally to the various approaches offered up in the military commissions system. What were the stated reasons for any changes and why did the President ultimately settle on the approach reflected in the Manual for Military Commissions? Are these reasons credible and are there other, perhaps unstated reasons for the rule changes? To the extent that we can determine the reasons for why the evidence rules were changed, can similar rationales apply to other criminal trials in the military context? The paper also asks if we are at an evidence cross-road. Are we at a point where we need to reexamine the way evidence is treated in military criminal cases tried under the UCMJ? For example, should certain combat exceptions be written in to the military rules of evidence? On the other hand, are the recent efforts to depart from the established rules of evidence in military commissions nothing more then an attempt to give the government an advantage over a class of defendants who it deems is not worthy of enjoying full protections of a fair trial?

“Terror, the Rule of Law, and Institutional Design”

Governance (July 2009) Jerry Mashaw, Yale Law School

The journal Governance is offering a free download of an article by Professor Jerry Mashaw of Yale Law School in its current issue: “Terror, the Rule of Law, and Institutional Design” (22.3, July 2009).  Mashaw says that the post-9/11 struggle is a “story of administrative arrogance, judicial hesitancy, and congressional failure.”  But he is skeptical that a change in administration will eliminate the long-term threat to American legal culture that is posed by the war against terror.  Mashaw doubts that interbranch competition, or reforms within the executive branch, can assure respect for the rule of the law in times of national emergency.  The best solution, he says, might be the previously unthinkable notion of “two constitutions” — one for normalcy, and one for emergencies — so that “actions taken and legally sanctioned in extraordinary times [do] not bleed into and shape the normal legal culture.”  Download here: http://www.governancejournal.net.

“The President, Congress and the Security Council: Counterterrorism and the Use of Force Through the Internationalist Lens”

Willamette Law Review, Vol. 45, p. 417, 2009
University of Missouri School of Law Legal Studies Research Paper No. 2009-08

MARGARET E. MCGUINNESS, University of Missouri School of Law
Email: mcguinnessm@missouri.edu

This contribution to the 2008 Willamette Law School symposium, ?Presidential Power in the 21st Century,? addresses the question of presidential powers to carry counterterrorism policies – in particular the use of force against terrorist groups – through an internationalist lens. Viewed through that lens, domestic constitutional understandings of appropriate democratic constraints on presidential counterterrorism powers can be seen as interacting with international institutional understandings of democratic accountability for the use of force. This intersystemic process can be engaged to address ?democracy deficits? at both the international and domestic level and to promote reform at international organizations.

Part I of the article explains that U.S. counterterrorism policy post-September 11, 2001 has been more multilateral in its orientation than is generally assumed, and that counterterrorism policy going forward is likely to rely more, rather than less, on multilateral institutions. Part II examines the question of U.S. constitutional practice where the war powers have been exercised through international institutions. Part III argues that international institutional legitimacy should be more explicitly invoked as a rationale for closer consultation with and participation by Congress in counterterrorism use of force decisions. A more explicit acknowledgment of the dynamic, dialectical interaction between domestic democratic accountability for a state?s participation in U.N. counterterrorism programs and the international and domestic accountability for the action taken by the U.N. offers several advantages. Open embrace of more robust congressional participation in U.S./U.N. counterterrorism practice can contribute to overcoming the democracy gaps at home and within the U.N. by: (1) strengthening democratic accountability domestically; (2) modeling ?best practices? for nascent democracies and regimes in transition; (3) promoting procedural legitimacy within the Council; (4) promoting legitimacy of emerging international legal norms concerning the use of force against terrorists and terrorist groups; (5) harmonizing U.N. counterterrorism programs with international human rights protections; and (6) clarifying the role of judicial review (at the domestic and international level) of Security Council actions.

“Counter-Terrorism Law and Inchoate Offences”

GABRIEL HALLEVY, Ono Academic College, Faculty of Law
Email: hallevy@ono.ac.il

The modern definitions of the inchoate offences are well known in the criminal law since the Middle Ages both in European-Continent legal systems and in the English Common Law. They were mostly developed by the case-laws of the Star Chamber Court, which was abolished in 1640. The inchoate offences include three basic offences: Attempt, Conspiracy and Solicitation, but different legal systems defined some other offences as inchoate, such as the Aider and Abettor in Britain after the full validation of the Serious Crimes Act, 2007, c.27, s.44. In this paper it is argued, that there is a very intensive interaction between the fight against terrorism and inchoate offences. The fight against terrorism effects the definition of inchoate offences, and inchoate offences are used as a major instrument of criminal law in the legal fight against terrorism.

“The Dilemma of Direct Participation in Hostilities”

ERIC CHRISTENSEN, affiliation not provided to SSRN
Email: eric.christensen@gmail.com

A universal and comprehensive definition of direct participation in hostilities (DPH) does not exist. Furthermore, modern warfare?s tendency to blur the distinction between combatant and civilian necessitates some revision of DPH. However, States have incentives to pursue narrow or broad interpretations of DPH, or even both. These contradictory strategies create a dilemma for policymakers who seek to revise the concept of DPH. Any revision is likely to put some group of individuals at risk; there is not a simple answer to the question of how best to revise DPH. Instead, a radical revision of DPH is needed. This report will briefly examine the law of war and then explore the relative merits of the U.S., Israeli, and the International Committee of the Red Cross?s interpretations of DPH. Lastly, this report will recommend potential solutions to the dilemma of DPH interpretation, most notably a membership-based approach.

Goldsmith on detention options and national security courts

* Jack Goldsmith, “Long Term Terrorist Detention and Our National Security Court” (Feb. 9, 2009)

A Working Paper of the Series on Counterterrorism and American Statutory Law, a joint project of the Brookings Institution, the Georgetown University Law Center, and the Hoover Institution

http://www.brookings.edu/~/media/Files/rc/papers/2009/0209_detention_goldsmith/0209_detention_goldsmith.pdf

This 20-pager is a must-read document for those following the debate about how best to proceed in connection with detention policy.  From the introduction:

For years there has been a debate about whether to create a national security court to supervise the non-criminal military detention of dangerous terrorists. The debate has many dimensions and is often confusing. Some national security court opponents are really opposed to the non-criminal military detention system that such a court would supervise, and insist that terrorists be tried in criminal court or released. Other opponents of a national security court accept the need for non-criminal military detention but do not favor institutionalizing a new and “secret” court to oversee these detentions. Proponents of a national security court come in many stripes as well. They advocate many versions of the court with many different tasks, ranging from various forms of detention supervision to the conduct of criminal trials.

This essay attempts to simplify these issues, at least a bit. It argues that the national security court debate—a debate in which I have participated1—is largely a canard. The fundamental issue is whether the United States should have a system of non-criminal military detention for enemy terrorists who for many reasons are difficult to prosecute and convict by trial. If the Obama administration chooses to maintain a system of non-criminal military detention—and for reasons set forth below, I think it should—it will necessarily also choose to have a national security court. This is so because federal courts constituting a “national security court” must supervise non-criminal detention under the constitutional writ of habeas corpus and a likely statutory jurisdiction conferred by Congress. Viewed this way, we have had a centralized and thinly institutionalized national security court for years in the federal courts of the District of Columbia, which have been supervising Guantánamo Bay military detentions. The hard question about a national security court, once we accept the need for non-criminal military detention, is not whether it should exist but rather what its rules should be and, just as important, who should make these rules. In my view, Congress and the President, rather than the courts, must play the predominant role in crafting these rules. After explaining these points, I outline some of the issues and legal policy tradeoffs that the political branches should address, including whether such a court should be an independent institution akin to the Foreign Intelligence Surveillance Court and whether it should conduct criminal trials in addition to supervising detention.

GTMO panel webcast

* “The Post-Guantanamo Era: A Dialogue on the Law and Policy of Detention and Counterterrorism”

On Wednesday, January 28, 2009, the University of Texas School of Law and the Robert S. Strauss Center for International Security and Law hosted a panel discussion about the task of reforming the government’s approach to military detentions.  See here for more details.

The event was recorded and can be viewed online: [stream] [download]

The distinguished panel included John Bellinger, who served as Legal Adviser to the Secretary of State and to the National Security Council during the Bush Administration; Benjamin Wittes of the Brookings Institute, author of the book Law and the Long War: The Future of Justice in Age of Terror; and Stephen Vladeck, professor of law at American University and coauthor of a brief to the Supreme Court on behalf of Guantanamo detainee Salim Hamdan. Professor Bobby Chesney, a Strauss Center fellow and visiting professor of law at the University of Texas School of Law, facilitated the discussion.

upcoming events: GTMO panel; data privacy conference

* Upcoming Events

* Strauss Center for International Security and Law, University of Texas: “The Post-Guantanamo Era: A Dialogue on the Law and Policy of Detention and Counterterrorism” (TOMORROW)

A Panel Discussion with John Bellinger, Benjamin Wittes, and Steven Vladeck, moderated by Bobby Chesney
January 28, 2009 @ 5:30 pm – 7:00 pm, Eidman Courtroom, Connally Center for Justice

uighur detainees ordered released into US; forthcoming scholarship

1. Judge Urbina gives government until Friday to release Uighur detainees at GTMO into the US

Judge Urbina today ordered the government to release into the U.S. a group of Uighur detainees held at GTMO.  The government no longer categorizes the men as enemy combatants, but will not repatriate the men to China out of concern for how they would be treated there and has not yet been able to persuade a third country to accept them.

DOJ Fact Sheet on CT Efforts

* Fact Sheet: Justice Department Counter-Terrorism Efforts Since 9/11

DOJ has created a new fact sheet summarizing its counterterrorism activities since 9/11 (see here: Fact Sheet: Justice Department Counter-Terrorism Efforts Since 9/11).  The short documents lists major terrorism prosecutions, significant organizational developments, and a few other interesting odds-and-ends (including a brief discussion of efforts to prevent radicalization within prisons).  Also note this excerpt from the introduction, which implicitly responds to criticism that DOJ should wait longer before intervening with arrests when investigating terrorism suspects:

In each of these cases, the Department has faced critical decisions on when to bring criminal charges, given that a decision to prosecute a suspect exposes the Government’s interest in that person and effectively ends covert intelligence investigation. Such determinations require the careful balancing of competing interests, including the immediate incapacitation of a suspect and disruption of terrorist activities through prosecution, on the one hand; and the continuation of intelligence collection about the suspect’s plans, capabilities, and confederates, on the other; as well as the inherent risk that a suspect could carry out a violent act while investigators and prosecutors attempt to perfect their evidence.

While it might be easier to secure convictions after an attack has occurred and innocent lives are lost, in such circumstances, the Department would be failing in its fundamental mission to protect America and its citizens, despite a court victory. For these reasons, the Department continues to act against terror threats as soon as the law, evidence, and unique circumstances of each case permit, using any charge available. As Attorney General Mukasey has stated: “[W]hen it comes to deciding whether and when to bring charges against terrorists, I am comfortable knowing this: I would rather explain to the American people why we acted when we did, even if it is at a very early stage, than try to explain why we failed to act when we could have, and it is too late.”