[note: some of you have inquired recently to ensure the list is running correctly, prompted by the low volume of recent posts. Not to worry; the drop-off in volume just reflects some competing work obligations that will have an impact between now and late July. From late July onward, things will be back to normal (if not sooner).]
1. Ashcroft v. Iqbal (S.Ct. May 18, 2009)
The Supreme Court yesterday held that a Bivens complaint (asserting civil causes of action against several government officials in connection with post-9/11 immigration enforcement measures) failed to satisfy the pleading standard set forth in Twombly. En route to that holding, the court noted that Bivens liability in this context cannot be vicarious, but must instead be premised on the individual defendant’s personal unconstitutional conduct. The case will be remanded to the Second Circuit for a determination as to whether the plaintiffs should be given leave to replead.
The opinion appears here.
2. Upcoming Events
“Scars of Intelligence Reform” (Breakfast presentation by Donald Kerr, sponsored by the ABA Standing Committee on Law and National Security) Tuesday June 9th, at 8 a.m.
On Tuesday, June 9, 2009, Donald Kerr, former Principal Deputy Director of National Intelligence in the Office of the Director of National Intelligence, will address the Standing Committee on Law and National Security. His topic is “Scars of Intelligence Reform.”
The breakfast will be held at the University Club, 1135 16th Street, NW in Washington and will begin at 8:00 am.
Dr. Kerr, currently a Research Professor at George Mason University, has a notable career in the Intelligence Community. Prior to serving as second in command in the office of the DNI, he served as Director of the National Reconnaissance Office, Deputy Director for Science and Technology at the CIA, Assistant to the Secretary of the Air Force for Intelligence Space Technology and Assistant Director of the FBI, responsible for the Laboratory Division and Director of the Los Alamos National Laboratory from 1979 to 1985.
The charge for this breakfast is $25.00. Reservations must be made in advance. Checks made payable to “ABA” may be enclosed with the response form attached [SEE ATTACHMENT] and returned by June 5. If you are bringing guests, please note their names on the form. In the event you need to cancel your reservation, a refund will be made provided notice of cancellation is received in our office by June 5. There is no charge for members of the press.
We look forward to seeing you at our next breakfast program on Tuesday, June 9.
“Legal Aspects of the Fight Against Terrorism” (day one of a two day “Ivy to Olives Joint Academic Symposium” held at Ono Academic College in Israel (June 1, 2009)
Please see the attached flyer for the very interesting lineup of topics and speakers.
3. Forthcoming Scholarship
Matthew C. Waxman
Columbia Law School
Columbia Public Law Research Paper No. 09-202
Israel Yearbook on Human Rights, Vol. 39, 2009
Looking back on US and coalition detention operations in Afghanistan to date, three key issues stand out: one substantive, one procedural and one policy. The substantive matter – what are the minimum baseline treatment standards required as a matter of international law? – has clarified significantly during the course of operations there, largely as a result of the US Supreme Court’s holding in Hamdan v. Rumsfeld. The procedural matter – what adjudicative processes does international law require for determining who may be detained? – eludes consensus and has become more controversial the longer the Afghan conflict continues. And the policy matter – in waging counterinsurgency warfare, how do foreign military forces transition military detention operations to effective civilian institutions? – has emerged as a critical strategic priority for which the law of armed conflict provides little instructive guidance.
After briefly outlining the basis of US and coalition detention operations, this article addresses each of these issues in turn. It concludes with some general observations about the convergence of law and strategy.
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.
Why don’t intelligence agencies share information with each other? This article attempts to answer that perennially vexing question by consulting public choice theory as well as insights from other legal disciplines. It begins by surveying arguments for and against expanded sharing, examples of sharing failures, and recent reforms intended to encourage sharing. Next, the article considers why intelligence agencies see information sharing as a threat to the various values they maximize, such as influence over senior executive branch policymakers and autonomy to pursue agency priorities. It then proposes a series of analytical frameworks that enrich our understanding of why agencies resist sharing: At times data exchange resembles an intellectual property problem, sometimes it looks like an antitrust problem, and sometimes it looks like an organizational theory problem. Finally, the article examines whether the solutions suggested by these other disciplines can be adapted to the problems of information sharing.
At the core of Justice Kennedy’s majority opinion in Boumediene v. Bush are his repeated suggestions that habeas corpus is an integral aspect of the separation of powers, and that, as such, the writ remains relevant even when the individual rights of those who would seek its protections are unclear. And whereas some might view these passages as little more than rhetorical flourishes, it is difficult to understand the crux of Kennedy?s analysis – of why the review available to the Guantanamo detainees failed to provide an adequate alternative to habeas corpus – without understanding the significance of his separation-of-powers discussion. At least where habeas corpus is concerned, it seems clear from Boumediene that the purpose of judicial review, in Justice Kennedy’s view, appears to be as much about preserving the role of the courts as it is about protecting the individual rights of the litigants.
In this article, I take on this quiet theory behind Kennedy’s opinion and ask whether it might have applications beyond the unique context of habeas corpus, especially with regard to the more general constitutional right of access to the courts. As I argue, there is actually much to gain from re-conceptualizing access to courts as being as much about protecting the courts as it is about vindicating the individual rights of litigants, a theme largely reflected (although since forgotten) in the judicial decisions giving rise to modern access-to-courts jurisprudence. Thus, going forward, Boumediene might do more than just answer the circumstance-specific question about habeas corpus rights for non-citizens detained as enemy combatants; it might provide the starting point for a new theory of access to the federal courts in particular that could allow us to rethink a number of tenets of federal courts doctrine.
Most critiques of the Supreme Court’s June 2008 decision in Boumediene v. Bush (including Justice Scalia’s dissent in the same) have at their core the argument that Justice Kennedy’s majority opinion is inconsistent with prior precedent, specifically the Supreme Court’s 1950 decision in Johnson v. Eisentrager A closer read of Eisentrager, though, reveals a surprisingly unclear opinion by Justice Jackson, that seems to go out of its way to reach various issues on the merits even after suggesting that the federal courts lacked jurisdiction over habeas petitions filed by 22 Germans convicted of war crimes by a U.S. military tribunal in China. Put another way, it is hard to understand the scope of the rule that the Eisentrager majority thought it was enunciating, and therefore the extent to which it should have also applied in the Guantanamo cases.
This problem is not unique to Eisentrager, though. In the Court’s June 2008 decision in Munaf v. Geren, it also brushed aside a post-World War II precedent — the 1948 decision in Hirota v. MacArthur, again because it was not clear exactly which facts the earlier jurisdiction-precluding decision relied upon. As I explore in this essay — part of the Tulsa Law Review’s annual Supreme Court review — these decisions are emblematic of a judicial methodology that is no longer in vogue, thanks to the Supreme Court’s 1998 decision in Steel Co. v. Citizens for a Better Environment. After Steel Co., federal courts can no longer reach issues over which they lack jurisdiction, and so are far more careful to resolve jurisdictional questions at the outset, before moving on (where possible) to the merits.
But what effect does Steel Co. have on prior precedent, where the Court’s decision leaves unclear how much the merits actually mattered? As I explore in this essay, Steel Co. may itself compel that contemporary courts narrowly construe jurisdiction-precluding rules in cases like Eisentrager and Hirota, on the assumption that those courts would not have analyzed questions the answers to which could not have mattered. Reasonable people may disagree about whether Boumediene and Munaf were rightly decided, but the critical point for present purposes is that both were decided on jurisprudential clean slates.
This article asserts the thesis that customary international law (CIL), even in the absence of any new treaty, already provides a legal regime constraining the testing and use in combat of anti-satellite (ASAT) weapons. This argument, if validated, is important for both legal and public policy considerations: the world (especially, but not only, the United States) has grown increasingly dependent upon satellites for the performance of a wide array of commercial and military functions. At the same time, because of this growing reliance (and hence vulnerability), interest has surged in developing novel systems for attacking a potential enemy’s satellites – ASAT technology has been tested by the United States, Russia, and China, and other countries may soon shoot up that same dangerous trajectory. Oddly, the United States has consistently opposed international efforts to negotiate an arms control solution to this problem. Any comprehensive treaty would certainly be difficult to reach (there are numerous complicated issues of definitions, scope, and verification to surmount) but the American stance (not only during the Bush Administration) has been that we should not even try, because “there is currently no arms race occurring in outer space.”
This article turns that resistance on its head, by asking whether customary international law, even without any formal treaty on point, already imposes meaningful constraints upon ASAT activities. To develop the argument, it analyzes three strands of CIL: first, “general” customary international law, which has long been recognized as an authoritative, albeit complex, source of binding rules; second, the specialized legal regime incorporated into the law of armed conflict, which imposes its own strictures, fully applicable to conventional warfare, but not yet applied extra-terrestrially; and finally, another realm of specialized CIL, the emerging jurisprudence governing international environmental law. My conclusion is that there is already a meaningful ASAT-control regime, created by CIL even without codification in a new treaty. This is not, to be sure, a fully comprehensive legal web, and there would still be plenty of additional scope for a new treaty to enhance and extend the legal regime. But the conclusion is that treaty negotiators would not be drafting on a complete tabula rasa; an incipient legal order is already in place.
Case Western Reserve Journal of International Law, Vol. 40, pp. 531-560, 2009
Canada, like many other countries, has struggled with questions of how to prevent terrorist attacks without undermining human rights. One tool that gained prominence in recent years involves preventive detention under “security certificates.” This measure, undertaken through immigration legislation, applies to non-citizens found inadmissible for one of a number of reasons, including a suspicion that they endanger national security. Such detentions have ignited considerable controversy within Canada. In February 2007, the Supreme Court of Canada found the existing scheme unconstitutional. While the Court did not find the scheme to be discriminatory, in spite of its application only to non-citizens, it did find that the potential use of secret evidence contravened procedural fairness. Canada subsequently passed legislation, creating a special advocate system. This article argues that continued problems exist with these detentions, including questions of discrimination and concerns about the fairness of the new special advocate system.
Terrorism against the United States, post-9/11, reaches far beyond the U.S. borders. In order to effectively prevent and react to terrorism within the homeland, the U.S. must think of security internationally. International security efforts touch on key issues such as travel security, border control, immigration, intelligence, and financing terrorism. This article examines the U.S. effort at international cooperation in homeland security by examining security and threat assessment in order to analyze current developments and necessary progress moving forward. Further, this article explores comparative efforts at international cooperation in homeland security by examining Canada, Japan, and the E.U. in terms of security and threat assessment. Finally, this article offers recommendations and articulates criteria by which the U.S. can improve vital efforts at international cooperation in homeland security.
To ensure effective counterterrorism, the U.S. must follow a two step process. First, the U.S. must take measures to protect the homeland. Those measure include: promoting travel security by implementing sophisticated technology; promoting border security by securing the Northern border; implementing intelligence sharing between agencies; creating a coordinated plan to promote travel and border security; undergoing training and simulation, and finally; ensuring institutionalized continuity from one Administration to the next.
After taking action to protect the homeland, the U.S. must use these factors as a foundation on which to establish international cooperation. To establish effective international cooperation in homeland security, the U.S. must take measures including the following: forging international partnerships; sharing intelligence related to travel security; creating a coordinated international security plan; running international training and simulation exercises, and finally; implementing international institutionalized continuity.
Journal of Conflict and Security Law, 2008
U of Utah Legal Studies Paper No. 057-08-10
Traditional state v. state war is largely a relic. How then does a nation-state protect itself – preemptively – against the unseen enemy? Existing international law – the Caroline Doctrine, UN Charter Article 51, Security Council Resolutions 1368 and 1373 – do not provide sufficiently clear guidelines regarding when a state may take preemptive or anticipatory action against a non-state actor. This article proposes rearticulating international law to allow a state to act earlier provided sufficient intelligence is available. After examining international law, this article proposes a process-based “strict-scrutiny” approach to self-defense. Under this approach, the executive will have to convince a court, based on relevant, reliable, viable, and corroborated intelligence, that preemptive action is appropriate. This process leads to a check on the power o the executive by placing a judicial check on preemptive action, consequently establishing objective legal criteria for operational counterterrorism.
Muge Kinacioglu, Department of International Relations, Bilkent, University, Turkey, wrote a response to my article titled, “A Response to Amos Guiora: Reassessing the Parameters of the Use of Force in the Age of Terrorism: Pre-emptive Action and International Law.” Tarcisio Gazzini, Faculty of Law, VU University, Amsterdam, also wrote a response titled, “A Response to Amos Guiora’s Article on Pre-Emptive Self-Defence Against Non-State Actors.”
ABA National Security Law Report, Vol. 31, pp. 1-6, February 2009
U of Utah Legal Studies Paper No. 057-09-01
This exchange on Operation Cast Lead – Israel’s December 2008-January 2009 campaign in the Gaza Strip – includes essays by Guiora and Luban, followed by Guiora’s response to Luban’s essay and Luban’s response to Guiora’s. Luban argues that the Gaza campaign violated both the jus ad bellum and jus in bello proportionality principles. He also argues that the Hamas civil administration were not lawful targets under Israel’s own interpretation of the law of armed conflict. Guiora argues that terrorism changes the landscape of armed conflict and requires a reconfiguration of international law. Under this reconfiguration, an entire terrorist organization may properly be targeted.