forthcoming scholarship (and happy Memorial Day)

May 25, 2009

“The ‘Bush Doctrine’: Can Preventive War Be Justified?”

Harvard Journal of Law and Public Policy, Vol. 32, 2009
U of St. Thomas Legal Studies Research Paper No. 09-08

ROBERT J. DELAHUNTY, University of St. Thomas School of Law (Minnesota)

JOHN YOO, University of California at Berkeley School of Law

We continue to live in a dangerous world. We are exposed to the risk that hostile states or terrorist groups with global reach might attack our civilian population or those of our allies using weapons of mass destruction. In such circumstances, it might seem natural for U.S. policymakers to consider preventive war as a possible tool for countering such threats. Yet in the current climate of opinion, such thinking would be controversial – in large part, no doubt, because of the continuing disputes over the normative, strategic, and legal wisdom of what has been called the ?Bush Doctrine.?

Preventive war, in appropriate circumstances, can be justified for reasons that are closely analogous to those usually offered to justify humanitarian intervention. The key difference is that in preventive war the intervenors protect their own populations, whereas in humanitarian intervention the intervenors protect the target state?s population. Although critics of preventive war tend to be sympathetic to humanitarian intervention, the underlying logic for both uses of force is substantially the same.

In this Essay, we first explain what we mean by ?preventive? war, and how it is distinguishable from ?preemptive? war. Then we briefly consider whether, as critics of the Bush Doctrine allege, the War in Iraq was virtually unprecedented in the Nation?s history or was, instead, one of several major conflicts fought by the United States that could fairly be described as preventive wars. Finally, we shall recommend certain normative guidelines and criteria for policymakers to follow in deciding whether to initiate a ?preventive? war.

“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

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.

“Australian Terror Laws and Academic Freedom”

FREE SPEECH IN FEARFUL TIMES: AFTER 9/11 IN CANADA, THE U.S., AUSTRALIA & EUROPE, Turk J. & Mason A., eds., pp. 234-244, Canada: James Lorimer & Company Limited
U of Melbourne Legal Studies Research Paper No. 391

JOO-CHEONG THAM, University of Melbourne

In Australia, the domestic ?War on Terror? has been waged through a multitude of laws with at least 26 separate pieces of anti-terrorism laws passed since the September 11 attacks.1 More disturbing than the pace of legislative enactment is the character of the laws passed. These laws mean that Australian security and police agencies now have the power to detain without trial. Broad discretion has also been conferred upon the government to ban so-called ?terrorist organisations?.

These laws also cloak the operations of police and security organisations with greater secrecy, criminalise speech and heighten the risk of political and religious persecution. It is these features of the ?War on Terror? that particularly threaten academic freedom in Australia.

“Warrantless Wiretapping, FISA Reform, and the Lessons of Public Liberty: A Comment on Holmes’ Jorde Lecture”

California Law Review, Vol. 97, No. 407, 2009

PAUL M. SCHWARTZ, UC Berkeley School of Law

This Essay responds to Stephen Holmes? Jorde Lecture, which was delivered at Boalt Hall on November 5, 2007. It builds on his model of ?public liberty? by discussing how private liberty, and information privacy in particular, is a precondition for public liberty. For Holmes, private liberty is largely a negative right – a right to be free from governmental interference. In contrast, this Essay considers privacy to be an element of public rights. Participation in a democracy requires individuals to have an underlying capacity for self-determination, which requires some personal privacy.

This Essay analyzes a number of Holmesian concepts through the lens of the recent amendment of the Foreign Intelligence Surveillance Act (FISA). In Part I, I describe the background of FISA, the National Security Agency?s (NSA) warrantless surveillance program in violation of this statute, and the amendments to this law in the Protect America Act of 2007, a short term statutory ?fix? that has expired, and the FISA Amendments Act of 2008, which remains in effect.

In Part II, I turn to an analysis of the challenges to private and public liberty posed by the NSA?s surveillance. I organize this Part around three topics: (1) past wisdom as codified in law; (2) the impact of secrecy on government behavior; and (3) institutional lessons. As we shall see, a Holmesian search for the wisdom previously collected in law proves quite difficult. FISA regulated some aspects of intelligence gathering and left the intelligence community entirely free to engage in others. Over time, moreover, technological innovations and altered national security concerns transformed the implications of the past policy landscape. As a result, the toughest questions, which concern surveillance of foreign-to-domestic communications, do not receive an easy answer from the past.

Regarding the impact of secrecy on government behavior, the analysis is, at least initially, more straightforward. As Holmes discusses, the Bush administration was adept at keeping secrets not only from the public and other branches of government, but from itself. It is also striking how little Congress knew about NSA activities while amending FISA. The larger lessons, however, prove yet more complicated: strong structural and political factors are likely to limit the involvement of Congress and courts in this area. This Essay concludes by confronting these institutional lessons and evaluating elements of a response that would improve the government?s performance by crafting new informational and deliberative structures for it.

“The Dilemma of Direct Participation in Hostilities”

ERIC CHRISTENSEN, affiliation not provided to SSRN

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.

“Towards Military Rule?: A Critique of Executive Discretion to Use the Military in Domestic Emergencies”

Marquette Law Review, Vol. 91, No. 3, 2008
Vermont Law School Research Paper No. 09-01

JACKIE GARDINA, Vermont Law School

Following 9/11 and in the aftermath of Hurricane Katrina, the Bush Administration called for an increased role for the Department of Defense and the federal armed forces in responding to domestic emergencies. Through a variety of statutory measures, Congress answered the President’s request for enhanced authority, increasing the Executive Branch’s already enormous discretionary power to deploy the federal armed forces domestically. But some members of Congress have begun to question the propriety of such authority housed almost exclusively in the Executive Branch. By increasing the military’s presence in the domestic sphere the federal government is obscuring the traditional lines between military and civilian roles. Even when sanctioned by civil leaders, the increased role of the armed forces in the domestic life endangers civil liberties and the democratic process.

The central purpose of this Article is to expose the erosion of the structural checks on the Executive’s power to deploy the military domestically to execute the laws and quash public disorder. It begins by briefly describing the historical bases for the founding generation’s mistrust of an executive with unbridled access to a military force. Next, it identifies the structural protections that were placed in the Constitution in response to these concerns, placing special emphasis on congressional control. In Part III, it describes the erosion of the structural checks, focusing first on the division of power between Congress and the Executive and then turning to the federalism issues. It offers a startling picture of how, over the last two plus centuries, excessive discretionary power has been delegated to the Executive Branch. Finally, Part IV offers a modest proposal that recognizes the dangers inherent in the introduction of military force into civilian society and attempts to restore the checks originally envisioned by the Founders while still providing adequate flexibility to respond to modern day exigencies.

“Justifying the Political Question in War: The Natural Source, Substance, and Scope of Political Power”

MATTHEW JORDAN COCHRAN, Campbell University School of Law

Attempts by plaintiffs to avoid induction into the armed forces, to enjoin the President’s military orders, and to contest war taxing and spending – each claim asserting the “unconstitutionality” of military actions then underway – have been thwarted by justiciability doctrines. The most persuasive of these doctrines, but for reasons distinct from and more compelling than its traditional justifications, is the political question doctrine.

The traditional political question doctrine rubric, as shown by its application during and following the Vietnam War, has proven misleading and largely incomplete. It becomes important to understand that social contract principles – and not doctrinal slight of hand – forbid unelected judges from answering war questions. The “political question result” should be seen as our government’s sensitivity (whether innate, learned, or bitter) to the natural boundaries within which it may operate legitimately.

significant release of old OLC memos

March 2, 2009

DOJ today announced the release of a number of significant OLC memos

No time for summaries at the moment, but here they are:

uighur detainees ordered released into US; forthcoming scholarship

October 7, 2008

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. Read the rest of this entry »