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)

Email: RJDELAHUNTY@stthomas.edu
JOHN YOO, University of California at Berkeley School of Law
Email: YOO@LAW.BERKELEY.EDU

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
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.

“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
Email: j.tham@unimelb.edu.au

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
Email: pschwartz@law.berkeley.edu

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
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.

“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
Email: jackie_gardina@ca1.uscourts.gov

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
Email: matthewjordancochran@gmail.com

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.


Al-Adahi v. Obama; Gherebi v. Obama; forthcoming scholarship

February 13, 2009

1. Al-Adahi v. Obama (D.D.C. Feb. 12, 2009) (Kessler, J.)

Judge Kessler has issued an opinion concluding that the government’s “search” obligation when it comes to identifying and disclosing potentially relevant information runs to information reviewed in connection with any GTMO habeas factual return (not just the return for a particular detainee), but that the obligation to does not run more generally.  See the opinion and accompanying case management order.

2. Gherebi v. Obama (D.D.C. Feb. 13, 2009) (Walton, J.)

Judge Walton has issued an order instructing the parties in the GTMO petitions to be prepared at a February 18th status conference to set a schedule for resolving the issue of the scope of the government’s military detention authority.  Judge Walton did not forbid the administration from arguing for a case-by-case approach as it attempted, unsuccesfully, before Judge Bates in Hamlily v. Obama on the 11th, but he did signal that this is not likely to work and that he wants the government prepared to set a schedule for addressing the general scope of detention authority.

3. Forthcoming Scholarship

Offshoring the War on Terror

Does the Constitution Follow the Flag?: The Evolution of Territoriality in American Law

Kal Raustiala (UCLA)

Offshoring is usually thought of in the context of globalization and economic activity. Yet a signal feature of the Bush Administration’s “war on terror” was the offshoring of core security functions. The most famous example is the use of Guantanamo Bay as a detention center, but many other examples of extraterritorial activity exist, such as the practice of “extraordinary rendition.” This chapter, drawn from a forthcoming book from Oxford University Press titled Does the Constitution Follow the Flag?, charts and analyzes these developments, and associated judicial decisions such as Boumediene v. Bush, with reference to larger trends in American politics and jurisprudence.

“Combatants and the Combat Zone”

University of Richmond Law Review, Forthcoming
Notre Dame Legal Studies Paper No. 08-39

MARY ELLEN O’CONNELL, Notre Dame Law School
Email: MaryEllenOConnell@nd.edu

Following the attacks of 9/11, President George W. Bush declared that the United States was in a “global war on terrorism”. His administration claimed the wartime privileges to kill without warning and detain without trial anyone suspected of association with terrorist organizations anywhere in the world. These claims were made in the face of contrary international law. Under international law, a war or armed conflict is characterized by organized armed groups engaged in intense, armed hostilities. To meet these criteria, such groups are associated with territory. In addition to the concept of armed conflict, the concept of conflict zone is important. Killing combatants or detaining them without trial may be permissible when done in a zone of actual armed hostilities. Outside such a zone, however, authorities must attempt to arrest a suspect and only target to kill those who pose an immediate lethal threat and refuse to surrender.

“Passing the Buck: State Responsibility for Private Military Companies”

European Journal of International Law, Vol. 19, Issue 5, pp. 989-1014, 2008

CARSTEN HOPPE, European University Institute
Email: carsten.hoppe@eui.eu

States hire private military or security companies [PMSCs/contractors] in armed conflict and occupation to fulfil tasks formerly exclusively handled by soldiers, including combat, guarding and protection, and detention and interrogation. PMSC personnel, like soldiers, can and do violate or act incompatibly with International Humanitarian Law and Human Rights Law. Relying on the International Law Commission’s Articles on State Responsibility, the article compares the responsibility of states for such conduct of their soldiers with that which states incur with respect to the conduct of contractors they hire. It reveals a regulatory gap which states seeking to reduce their exposure to international responsibility can exploit. Positive obligations of states under International Humanitarian Law narrow this gap to some degree. An analysis of the duty to prevent demonstrates that the potential of positive Human Rights Law obligations to bridge the gap – although important – remains limited by their due diligence nature, and problems of extraterritorial applicability. It is then argued that the conduct of certain contractors exercising coercive functions can be attributed to the hiring state as that of persons forming part of its armed forces in the sense of the customary provision enshrined in Article 3 of Hague Convention IV of 1907 and Article 91 of Additional Protocol I. Where this is the case, the state will be responsible for their conduct as it would be for that of its soldiers, which fully eliminates the regulatory gap.

“The Rules on the Use of Force at the Beginning of the XXI Century”

Journal of Conflict and Security Law, Vol. 11, Issue 3, pp. 319-342, 2006

TARCISIO GAZZINI, affiliation not provided to SSRN

The article discusses the impact of recent military interventions in Kosovo, Afghanistan and Iraq on the rules governing the use of force in international law. It argues that, in spite of some egregious violations, existing rules have not been changed or fallen into desuetude. The attempt to dismantle the collective security system and the claim to relax beyond recognition the general prohibition on the use of force have found the strong opposition of the overwhelming majority of the UN membership. Furthermore, existing rules and Article 51 of the UN Charter have proved flexible enough to protect States against the threats posed by terrorism and weapons of mass destruction. Their application, nonetheless, remains extremely problematic and confirms the need for a collective control over the use of military force.

“The Temporal Dimension of Self-Defence: Anticipation, Pre-Emption, Prevention and Immediacy”

Journal of Conflict and Security Law, Vol. 11, Issue 3, pp. 361-369, 2006

T.D. GILL, University of Amsterdam – Faculty of Law
Email: T.D.Gill@uva.nl

This article explores the temporal dimension of the right of self-defense, in particular, the controversy relating to the possibility of responding to the potential threat of attack which has resulted from the publication by the U.S. Government of its National Security Strategy document in 2002, in which the U.S. Government claimed a right to use force to pre-empt such threats. In assessing the temporal scope of self-defense an examination is made of the dual customary-Charter nature of the right of self-defence and conclusion is drawn that both sources of law are relevant in assessing any claim to use force in advance of an armed attack on the basis of the Caroline criteria of immediacy, necessity and proportionality, which are still relevant today.

“The Emerging Use-of-Force Paradigm”

Journal of Conflict and Security Law, Vol. 11, Issue 3, pp. 309-317, 2006

MICHAEL J. GLENNON, Tufts University – The Fletcher School
Email: michael.glennon@tufts.edu

Change has been the source of many recent proposals concerning United Nations (UN) reform, and because that report has also been a focal point of discussion concerning the law that ought to govern the use of force, it is appropriate to consider closely the report’s treatment of that subject. Viewing the topic afresh, one would suppose that a useful commentary would have addressed four questions:
(1) What security threats do states face in the twenty-first century?
(2) What rules are in place to meet those threats?
(3) Do the rules work?
(4) If not, how can they be fixed?

“You are the Weakest Link and We Will Help You! The Comprehensive Strategy of the United Nations to Fight Terrorism”

Journal of Conflict and Security Law, Vol. 11, Issue 3, pp. 371-397, 2006

NOËLLE QUÉNIVET, affiliation not provided to SSRN

In 2004, the United Nations Secretary-General published the report of the high-level panel of experts on threats, challenges and change that projected a comprehensive strategy to fight various types of scourges that afflict humankind and notably terrorism. The report and the following world summit documents inscribe themselves in established trends set by the State community and the United Nations in the past decades. Since 11 September, five different wide-encompassing strategies have been offered to the State community to come to terms with terrorism. This article focuses on this proliferation of documents and their inconsistency in terms of content. Yet, it also pinpoints the common thread that runs through the documents, namely that the comprehensive strategy must address the root causes of terrorism, strengthen States and promote the rule of law and human rights, three targets that can be reached by the implementation of a strong policy of capacity-building. In all cases, the State community works on the premise that weak and rogue States will consent to be helped in building national and regional capacity to combat terrorism. Undoubtedly, convincing weak and rogue States to abide by international standards will require more than just capacity-building to deflect terrorism. Rather, the United Nations will need to conceptualise general measures to prevent and reverse state failure, which in turn means that the strategy must be indeed ‘comprehensive’.

“The Impact of the Responsibility to Protect on Peacekeeping”

Journal of Conflict and Security Law, Vol. 11, Issue 3, pp. 429-464, 2006

SUSAN C. BREAU, affiliation not provided to SSRN

This article examines the impact of the doctrine of the Responsibility to Protect on Peacekeeping in the United Nations. One of the key debates in peacekeeping is whether there is a duty to use force to protect civilians from genocide, crimes against humanity and war crimes. The practice of UN peacekeeping is evolving in many instances, with the notable exception of Darfur, into robust peacemaking actions with a positive responsibility to protect civilians within the field of operations. This article reviews the development of the concept of the responsibility to protect and then applies the various parts of the doctrine to actual situations of threats to international peace and security.

“The Expanding Law of Self-Defence”

Journal of Conflict and Security Law, Vol. 11, Issue 3, pp. 343-359, 2006

NATALINO RONZITTI, affiliation not provided to SSRN

Since the entry into force of the UN Charter, self-defence has become the preferred excuse for States to justify their use of force, for use of force is in principle banned not only by the Charter but also by modern constitutions. The author examines how States are stretching the notion of this permissible use of force to justify their armed actions in foreign territory. Although it is still the object of controversy between continental and overseas lawyers, a consensus seems to be emerging on the lawfulness of anticipatory self-defence, provided that it is given a narrow interpretation. On the contrary, pre-emption has not gained currency within the international community. Another emerging consensus is related to the origin of an armed attack, which may come not only from States but also from non-State entities to trigger the right of self-defence. The author suggests that a declaratory GA resolution, such as the ones on Friendly Relations and on the Definition of Aggression, could clarify the subject. However, his conclusion is pessimistic, because States prefer to leave the boundaries of self-defence undefined to retain their freedom of action.

“Regional Organisations and the Maintenance of International Peace and Security: Three Recent Regional African Peace Operations”

Journal of Conflict and Security Law, Vol. 11, Issue 3, pp. 483-508, 2006

MARTEN ZWANENBURG, University of Leiden

The leitmotiv of this article is the recommendation by the High-Level Panel on Threats, Challenges and Change that authorisation from the Security Council should in all cases be sought for regional peace operations. It discusses the legal basis for such operations, and three recent regional peace operations are analysed in detail: African Union Mission in Sudan (AMIS), Economic Community of West African States in Cote d’Ivoire (ECOFORCE) and Economic and Monetary Community of Central Africa in the Central African Republic (FOMUC). This article concludes that the practice with respect to these operations does not support a requirement of Security Council authorisation, where there is consent of the parties or, it appears, the government of the host state alone.

“The UN-Led Multilateral Institutional Response to Jihadist Terrorism: Is a Global Counterterrorism Body Needed?”
Journal of Conflict and Security Law, Vol. 11, Issue 3, pp. 399-427, 2006

ERIC ROSAND, affiliation not provided to SSRN

This article first briefly outlines the current terrorist threat posed by militant Islamist radical terrorism and the complexity and evolving nature of threat. It highlights the lack of consensus in academic and policy communities regarding the underlying causes of this terrorism. It them posits that the overarching challenge in the next few years will be to maintain the broad-based international co-operation in the fight against terrorism that has existed since 11 September 2001, which is essential to address the threat effectively. Elements of this challenge include dispelling the notion that the US-led counterterrorism effort is targeting Islam and keeping the global South engaged. Durable, effective and flexible mechanisms are needed at the global, regional and national levels to ensure that multifaceted, holistic strategies are developed and implemented to address these issues. The article then outlines the current capacity of multilateral institutions to contribute to the fight against terrorism. The performance of the main UN counterterrorism bodies – led by the Security Council’s different counterterrorism entities – as well as some of the key regional and functional ones, this article concludes, has been uneven. Different organisations have developed counterterrorism programs and units, but these have emerged from political reactions rather than strategic decisions with corresponding achievable technical objectives. The duplication of efforts, overlapping mandates and lack of co-ordination at the international, regional and sub-regional levels have limited the different bodies’ overall contribution to the global non-military counterterrorism effort and have left many of the world’s vulnerabilities to terrorism unaddressed. This article concludes that maintaining international co-operation and the focus on capacity-building and other non-military counterterrorism measures, as well as the need to address the proliferation of counterterrorism bodies, highlights the need for an effective multilateral body at the center of the effort. The UN Security Council’s Counter-Terrorism Committee was supposed to be this body, but it has been unable to fulfill its broad mandate effectively. The article details the limitations of the current UN Security Council-led approach and the inherent, political, administrative and budgetary challenges of operating within the UN system that would make it difficult to co-ordinate global capacity-building efforts effectively. While it proposes a possible short-term improvement – the consolidation of the different parts of the Security Council counterterrorism program into as single body – in the end, it argues that a new international body dedicated to counterterrorism outside of, but perhaps related in some way to, the UN may be needed.