forthcoming scholarship

“The United States, Israel, and Unlawful Combatants”

Duke Law School Public Law & Legal Theory Paper No. 249

CURTIS A. BRADLEY, Duke University – School of Law
Email: cbradley@law.duke.edu

This essay considers how members of a terrorist organization should be categorized under international law when the organization is engaged in an armed conflict with a nation. The proper categorization can have significant implications for the nation?s authority under both international and domestic law to subject members of a terrorist organization to military targeting and detention. As a result of judicial decisions, Israel ostensibly follows a two category approach, pursuant to which anyone who is not a lawful combatant, including a member of a terrorist organization, is a civilian. The United States, by contrast, currently follows a three category approach, whereby members of a terrorist organization can be considered ?unlawful combatants? and thus treated as legally distinct from civilians. Although the two category approach may seem at first glance to be the most protective for civil liberties, it is not clear that this is the case. If a conflict with a terrorist organization is pushed into the civilian category, it is very likely that this category will be stretched in order to accommodate the security needs of the nation. The net result may be a reduction in protection for true non-combatants. While the three category approach is less anchored in existing treaties than the two category approach, it allows for a more realistic description of how members of a terrorist organization operate. Moreover, depending on how it is defined, the third category could contain significant substantive and procedural protections that are similar to those available under the two category approach.

“Reciprocity and the Law of War”

Sean Watts (Creighton Law)

Forthcoming, Harvard International Law Journal, Vol. 50, No. 2, Summer (2009)

Abstract:
This article examines how the principle of reciprocity operates within the international law of war. Tracing the historical development and application of the law, the Article demonstrates that the existing law of war derives from a set of rules that are highly contingent on reciprocity. Contrary to common understanding, reciprocity strongly influences states’ interpretation and application of the law of war. The Article first identifies an obligational component of reciprocity that restricts operation of the law to contests between parties with parallel legal commitments. Second, the Article identifies an observational component of the principle that permits parties to suspend or terminate observance when confronted with breach. Although the principle of reciprocity was softened by late twentieth century legal instruments, it continues to form a critical component of the law of war and guides both pragmatic and theoretical discourse. Regardless of normative conclusions about reciprocity as a precondition to application of the law, the Article’s reciprocity-cognizant framework for understanding the law of war provides a useful platform for reform efforts.

The Army Lawyer (“International and Operational Law” edition) (May 2009)

From the Table of Contents, lots of really interesting stuff:

Foreword

Lieutenant Colonel Michael O. Lacey …………………………………………………………………………………………………………………. 1

Remarks to the 2009 Samuel Dash Conference on Human Rights Rule of Law in the Context of Military Interventions

Jeh Charles Johnson …………………………………………………………………………………………………………………………………………. 2

Seven Detainee Operations Issues to Consider Prior to Your Deployment

Major Olga Marie Anderson & Major Katherine A. Krul ……………………………………………………………………………………….. 7

Rule 99 of the Customary International Humanitarian Law Study and the Relationship Between the Law of

Armed Conflict and International Human Rights Law

Major J. Jeremy Marsh ……………………………………………………………………………………………………………………………………. 18

The Expansive Definition of “Protected Persons” in the War Crime Jurisprudence

Major Shane Reeves ………………………………………………………………………………………………………………………………………… 23

Cluster Munitions: Wonder Weapon or Humanitarian Horror?

Lieutenant Colonel Michael O. Lacey ………………………………………………………………………………………………………………… 28

Don’t Call It a SOFA! An Overview of the New U.S.-Iraq Security Agreement

Commander Trevor A. Rush ……………………………………………………………………………………………………………………………… 34

Hostile Outsider or Influential Insider? The United States and the International Criminal Court

Colonel Stuart W. Risch ……………………………………………………………………………………………………………………………………. 61

(The Army Lawyer comes out monthly and The Military Law Review is published quarterly.  Both welcome articles from all military and civilian authors on topics of interest to military lawyers.  The Army Lawyer will primarily publish practitioner oriented pieces and the MLR publishes more policy oriented articles.  In either case, our academic departments do a subject matter review on every article submitted for publication (so for instance, my department sees all international/operational law related articles) and then after acceptance to either journal, full-time professional editors work with the authors to get the article to publication.

• https://www.jagcnet.army.mil/ArmyLawyer
• https://www.jagcnet.army.mil/MilitaryLawReview

“Ethics and Operational Realities in the War on Terror”

South Texas Law Review, Vol. 49, p. 837, 2009

MICHAEL W. LEWIS, Ohio Northern University – Pettit College of Law
Email: m-lewis@onu.edu

By examining the effects of a seemingly trivial choice, the selection of different apprehension forms, this short essay illustrates how the operational realities of soldiers engaged in counterinsurgency operations are shaped, and the ethical dimensions that go along with such choices. It urges that these operational realities be taken into account during the ongoing abstract debates about process.

“Targeting Enemy Forces in the War on Terror: Preserving Civilian Immunity”

Vanderbilt Journal of Transnational Law, Vol. 42, No. 3, p. 683, 2009

RICHARD D. ROSEN, Texas Tech University – School of Law
Email: Richard.Rosen@ttu.edu

Protocol I to the Geneva Conventions of 1949 and the interpretation given to it by many in the international community (e.g., UN, NGOs, media) provide perverse incentives to terrorist and insurgent groups to shield their military activities behind civilians and their property. In other words, the law governing targeting is fundamentally defective; it affords terrorist and insurgent groups strategic and tactical advantages from their own noncompliance with the law and their adversaries? observance of it. The consequence has been increasing noncompliance with the law and growing civilian casualties. This article proposes structural changes to the law governing targeting and attitudinal changes by those who interpret it to ensure civilians receive adequate security from armed attack.

“The Protection of National Security Whistleblowers: Imperative But Impossible A Critical Appraisal of the Scope and Adequacy of Whistleblower Protection Laws for National Security Whistleblowers”

MELISSA KHEMANI, Georgetown University
Email: melissa.khemani@gmail.com

The purpose of this paper is to undertake a critical assessment of the provisions, application and enforcement of whistleblower protection laws specifically accorded to employees in the intelligence and national security sectors. The underlying argument of this paper is that national security whistleblowers play an important role in promoting accountability and contributing to a system of checks and balances, but the current legal framework for their protection has significant weaknesses, resulting in a system that has been rightly described as ?Kafka-esque.? It is this author?s opinion that national security whistleblowers should be subject to narrower provisions of whistleblower protection because of the sensitive nature of the information to which they are privy and in turn, may disclose. However, this paper seeks to demonstrate that a balance can and should be struck between protecting both the whistleblower and national security interests, but that the current system as it stands falls short of achieving this.

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.

resentencing of Abu-Jihaad; forthcoming scholarship

1. United States v. Abu-Jihaad (D. Conn.)

Hassan Abu-Jihaad has received a 10 year sentence (the statutory maximum) for his conviction on a charge of disclosing classified information relating to national defense.  The defendant had been convicted at trial on another charge—18 USC 2339A (material support in furtherance of certain specified predicate offenses)—but last month the trial judge granted a defense motion of acquittal on that count.  Details here.

2. forthcoming scholarship

“The ambiguous protection of schools under the law of war – time for parity with hospitals and religious buildings.”

Georgetown Journal of International Law

Gregory R. Bart (JAGC, USN)

A disturbing trend during recent armed conflicts is that states tend to treat school buildings less respectfully than they treat hospitals and religious buildings. One important cause of this trend is the different privileged status afforded to each building type under the law of war. The law of war equally forbids targeting hospitals, religious buildings, schools, and other civilian buildings unless they become justifiable military objectives. But ironically, it fails to equally protect these buildings from being used for such objectives in the first place. Under the law of war’s privileges for civilian hospitals and most religious buildings, armed forces cannot use these buildings for military purposes–without exception. In contrast, the law of war’s privilege for school buildings ambiguously allows military use based on necessity. This is surprising because military use converts a school from a privileged site into a justifiable target for an opposing army. Even more troubling, such use increases the likelihood that an opposing army will confuse converted and unconverted schools and wrongfully attack one that shelters children and other civilians.

State practice paradoxically both opposes and accepts military use of schools during war. The ongoing conflict in Iraq provides many examples. In 2003, the United States condemned Iraqi military commanders for employing school buildings and grounds as sites for artillery, materiel storage, and headquarters. (1) Human Rights Watch noted that the Iraqi practice directly contributed to the number of civilian casualties because those buildings became lawful targets for the coalition forces. (2) The United States also denounced hostile insurgent forces for using school buildings as weapons caches and bases to launch attacks. (3) Meanwhile, in northern Iraq, U.S. military commanders employed school buildings for military headquarters and command posts. (4) Of note, American forces utilized school buildings that they characterized as abandoned or as former schools while Iraqi and insurgent forces exploited ones that were still occupied by students. (5) But these incidents beg the question of why armed forces respect hospitals and religious buildings more than schools?

This article considers whether the law of war provides school buildings with a less privileged status than it gives to hospitals and religious buildings. It proposes that three critical issues necessarily affect any legal regime that seeks to establish privileged status for a specific type of building during war: 1) defining which buildings qualify; 2) ensuring maintenance of privileged status by prohibiting their military use; and 3) ensuring their recognition by armed forces.

The article’s first section reviews how the law of war and humanitarian law evolved to address these issues for hospitals and religious buildings. It traces how the law of war originally gave these buildings only a derivative privileged status that was based entirely on the presence of civilians and noncombatants. Through a series of treaties, the law of war gradually gave direct, independent protection to hospital buildings based on their inherent humanitarian nature and to most religious buildings based on their cultural and spiritual value to a people. The law shifted from focusing exclusively on the obligations of military attackers in targeting to creating equally shared obligations for attackers and defenders not to use these buildings for military purposes.

The second section shows that the law of war’s privilege for schools has not evolved to the same extent because it fails to clearly answer the above three questions for school buildings. Current international law does not provide most with a direct, clear, and independent privileged status based on their inherent humanitarian nature or value to a people. Rather, it protects schools against military use based solely on the presence of civilians and noncombatants. It thereby focuses exclusively on the military attacker’s obligations to discriminate in targeting. These indirect protections are anachronistic compared to the direct ones currently afforded to hospitals and religious buildings.

The final section proposes that the law of war should adopt for schools a modern privilege that answers the above three issues. It asserts that school buildings have an inherent value to society that merits independent protection. It further suggests a framework for a modern school privilege by borrowing the best aspects of the protections currently afforded to hospitals and religious buildings. Specifically, for schools, a modern privilege should describe which buildings qualify, prohibit their military use, and establish a distinctive emblem. In this manner, the law of war might inhibit in the future the high incidence of school building destruction that has been common in recent armed conflicts.

“Jack Bauer Syndrome: Hollywood’s Depiction of National Security Law”

Southern California Interdisciplinary Law Journal, Vol. 17, p. 279, 2008
U Iowa Legal Studies Research Paper No. 09-13

TUNG YIN, University of Iowa – College of Law
Email: tung-yin@uiowa.edu
U IOWA LEGAL STUDIES RESEARCH PAPER SERIES, University of Iowa College of Law
Email: lawssrn@iowa.uiowa.edu

In this Article, which was presented at the Law & Humanities Section Panel at the 2008 Annual AALS Conference, I examine the way that the Fox television series “24” portrays two issues relevant to national security law: the use of torture to extract information in order to stop an imminent terrorist attack, and the depiction of Arabs as villains (and non-villains) with the concomitant impact on racial profiling and other stereotyping of Arab-Americans and Arabs. I conclude that the depiction of torture is narratively stacked in favor of government agent Jack Bauer. I also conclude that “24” attempts to balance its portrayal so that not all villains are Arabs, and not all Arabs are villains. However, I point out points of improvement in this area.

“Boumediene and Lawfare”

U Iowa Legal Studies Research Paper No. 09-11
University of Richmond Law Review, Vol. 43, p. 865, 2009

TUNG YIN, University of Iowa – College of Law
Email: tung-yin@uiowa.edu
U IOWA LEGAL STUDIES RESEARCH PAPER SERIES, University of Iowa College of Law
Email: lawssrn@iowa.uiowa.edu

One reason that the Bush Administration persistently resisted giving Guantanamo Bay detainees access to courts and to lawyers was the belief that they would use such access to engage in “lawfare,” or “the use of law as a weapon of warfare.” Discovery of a purported al-Qaeda training manual in a safehouse in Great Britain reinforced this concern, particularly given the manual’s exhortation to its readers, if captured, to make false claims of torture and to use attorneys to pass information to the outside world. Yet, the Supreme Court’s decision in Boumediene v. Bush appears to discount the concern over lawfare by implying that the detainees are constitutionally entitled to representation by counsel. In this Essay prepared for the Allen Chair Symposium on “Detaining Suspected Terrorists: Past, Present, and Future,” I discuss reasons to believe that lawfare — as practiced by lawyers for detainees — can be adequately controlled by existing tools available to the government: security clearance requirements for counsel, and monitoring of privileged conversations. These tools are not without controversy, and I do not mean to suggest that they should be used lightly, but their very intrusiveness makes them particularly effective at impeding lawfare. Thus, I conclude that it is unpersuasive to argue that Bouemdiene will endanger Americans by enabling detainees to engage in effective lawfare through the use of lawyers.

“Threats of Armed Force and Contemporary International Law”

Netherlands International Law Review, Vol. 54, pp. 229-277, 2007

MARCO ROSCINI, University of Westminster School of Law, King’s College London School of Law, Queen Mary University of London School of Law
Email: mroscini@iol.it

The article first tries to define what a ‘threat’ of armed force under Article 2 (4) of the UN Charter is. It then analyses the status of its prohibition in the framework of the sources on international law. The legal consequences of the violation of the prohibition under the law of treaties, law of state responsibility and international criminal law and the remedies against such threats are finally discussed.

“The Efforts to Limit the International Criminal Court’s Jurisdiction Over Nationals of Non-Party States: A Comparative Study”

The Law and Practice of International Courts and Tribunals, Vol. 5, pp. 495-527, 2006

MARCO ROSCINI, University of Westminster School of Law, King’s College London School of Law, Queen Mary University of London School of Law
Email: mroscini@iol.it

The purpose of this article is to discuss and compare the multilateral and bilateral efforts to prevent the ICC from exercising its jurisdiction over nationals of states non-parties to the Rome Statute. In particular, the US secured the adoption of Security Council resolutions no. 1422 (2002), 1487 (2003), 1497 (2003), 1593 (2005) and launched a campaign for the conclusion of bilateral non-surrender agreements: the differences between the resolutions and between them and the agreements are analysed. None of the resolutions above can be qualified as an exercise of the Security Council’s power to request the ICC not to commence or proceed with investigations or prosecutions under Article 16 of the Rome Statute, as this provision was not conceived to cover future and hypothetical cases. Furthermore, by adopting resolutions 1422 and 1487 and by including the paragraphs on the exclusive jurisdiction of the contributing state in resolutions 1497 and 1593, the Security Council acted ultra vires, since no threat to the peace can be found in order to justify the exercise of Chapter VII powers. The resolutions are also in contrast with the principles and purposes of the UN. As to the bilateral non-surrender agreements, they cannot be qualified as “international agreements pursuant to which the consent of the sending State is required to surrender a person of that State to the Court” as required by Article 98 (2) of the Statute, since they prohibit the surrender to the ICC of any individual who is “present” on the territory of the other party and they do not require the state to which the accused has been transferred to investigate and prosecute the case. Should Italy conclude a non-surrender agreement with the US, it would incur international responsibility. The law giving effect to such an agreement in the Italian legal order would also be in contrast with Articles 10 (1) and 11 of the Constitution.

“Unraveling Guantanamo: Detention, Trials and the ‘Global War’ Paradigm”

New Directions for the Department of Justice , No. 1, 2009
NYU School of Law, Public Law Research Paper No. 09-08

STEPHEN SCHULHOFER, New York University – School of Law
Email: stephen.schulhofer@nyu.edu

Closing Guantanamo presents a daunting challenge, both politically and practically. The detainees cannot be transferred readily to other locations abroad, and yet many commentators insist that they are too dangerous to be held within the United States. Under current law the detainees cannot continue to be held unless they are charged with crimes; yet the existing military commission system is unsustainable, and many detainees allegedly are impossible to prosecute in traditional courts without jeopardizing classified information. These immediate issues are also symptoms of a more basic problem – the concept of a “global war on terror.” Clear thinking about solutions to Guantanamo cannot begin in the absence of clear thinking about the legitimacy of the global war paradigm.

The immediate need to address Guantanamo and the broader imperative to find a sustainable framework for the future can both be met by a straightforward principle – the unqualified acceptance of pre-9/11 rules of international law and domestic due process. The difficulties attributed to that traditional approach are not wholly imaginary, but they have been misunderstood and shamelessly exaggerated. Familiar rules and institutions, properly managed, possess ample resources to cope with the challenges of modern terrorism.

new FOIA guidelines; Al Shimari v. CACI; forthcoming scholarship (NSL)

1. New FOIA Guidelines Issued by DOJ (for all agencies)

The Justice Department has issued new guidelines, for all agencies to follow, with respect to FOIA requests.  The guidelines are posted here.  From the press release:

The new FOIA guidelines address both application of the presumption of disclosure and the effective administration of the FOIA across the government. As to the presumption of disclosure, the Attorney General directs agencies not to withhold records simply because they can technically do so. In his memo, the Attorney General encourages agencies to make discretionary disclosures of records and to release records in part whenever they cannot be released in full.

The Attorney General also establishes a new standard for the defense of agency decisions to withhold records in response to a FOIA request. Now, the Department will defend a denial only if the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or disclosure is prohibited by law. Under the previous defensibility standard of the rules rescinded today, the Department had said it would defend a denial if the agency had a “sound legal basis” for its decision to withhold.

In addition to establishing criteria governing the presumption of disclosure, the Attorney General’s FOIA guidelines emphasize that agencies must be sure to have in place effective systems for responding to requests. In the memo, the Attorney General calls on each agency to be fully accountable for its administration of the FOIA.

The Attorney General’s memo also emphasizes that FOIA is the responsibility of everyone in each agency, and that in order to improve FOIA performance, agencies must address the key roles played by a broad range of personnel who work with each agency’s FOIA professionals. The memo highlights the key role played by agency Chief FOIA Officers who will now be reporting each year to the Department of Justice on their progress in improving FOIA administration. And, the Attorney General also directs FOIA professionals to work cooperatively with FOIA requesters and to anticipate interest in records before requests are made and to make requested records available promptly.

The Office of Information Policy will conduct training and provide guidance on the new FOIA guidelines to executive branch departments and agencies, as well as to interested groups, in order to maintain a comprehensive approach to greater government transparency.

Today’s memo rescinds the guidelines issued on Oct. 12, 2001, by former Attorney General John Ashcroft.

2. Al Shimari v. CACI (E.D. Va. Mar. 18, 2009)

The plaintiffs in this suit are four Iraqi citizens suing CACI on the ground that contract interrogators employed by CACI abused them at Abu Ghraib.  In this lengthy decision, which is attached as a pdf, the district court grants CACI’s motion to dismiss as to the plaintiffs’ Alien Tort Statute claims.  But it rejects the motion in all other respects (though it did not foreclose the possibility of an immunity finding at a later date, after discovery).

3. Forthcoming Scholarship (NSL)

“Administrative Detention of Terrorists: Why Detain, and Detain Whom?”

Matthew C. Waxman (Columbia Law)

From the introduction:

A debate rages in the halls of universities as well as in Congress and national security agencies about whether the United States should enact new “administrative” or “preventive” detention laws – laws that would authorize the detention of suspected terrorists outside the normal criminal justice system.1 Advocates argue that criminal law alone is inadequate to combat transnational terrorist networks spanning continents and waging violence at a level of intensity and sophistication previously achievable only by powerful states, but that the law of war is inadequate to protect liberty.2 Jack Goldsmith and Neal Katyal, for example, call on “Congress to establish a comprehensive system of preventive detention that is overseen by a national security court.”3 Critics warn that new administrative detention laws will undermine liberty, and they assert that criminal law already provides the government with ample tools to arrest,

charge, and prosecute suspected terrorists.4 Center for Constitutional Rights President Michael Ratner writes that preventive detention “cuts the heart out of any concept of human liberty.”5

This debate has only intensified since the Supreme Court held last Term in Boumediene v. Bush that prisoners at Guantánamo have a constitutional right to habeas corpus review of their detention.6 The Court expressly left unresolved important substantive questions such as the scope of the Executive’s power to detain,7 and delegated to lower courts resolution of

the procedural issues likely to arise in hundreds of resulting habeas petitions.8 Administrative detention proponents argue that these openings invite Congress to enact legislation to clarify the uncertainties, recognizing that the modern-day terrorist threat necessitates new legal tools.9 Critics draw the opposite lesson from Boumediene. A week after the decision came down, the bipartisan Constitution Project published a report condemning administrative detention proposals, arguing that Boumediene “illustrates [that] existing Article III courts are fully capable of adjudicating issues regarding the legality of detention. There is no need to create a specialized tribunal either for Guantanamo detainees or for anyone else who may be subject to detention under existing law.”10

This article aims to reframe the administrative detention debate, not to resolve it. In doing so, however, it aspires to advance the discussion by highlighting the critical substantive choices embedded in calls for legal procedural reform and by pointing the way toward appropriately tailored legislative options. It argues that the current debate’s focus on procedural

and institutional questions of how to detain suspected terrorists has been allowed to overshadow the questions of why administratively detain, and whom to detain. Not only are the answers to these questions at least as important as the procedural rules in safeguarding and balancing liberty and security, but their resolution should precede analysis of the procedural

issues. The soundness of any specific procedural architecture depends heavily on its purpose and on the substantive determinations it is expected to make.

To some, the answers to the why and whom questions may seem obvious – to prevent terrorism we should detain terrorists. With those basic ideas apparently settled, the administrative detention debate tends to jump quickly to the question of how to detain: What procedural protections should we afford suspects? What rights should they have to challenge

evidence proffered against them – and with what kind of lawyer assistance? What kinds of officials should adjudicate cases?11

The answers to why and whom are more complex and consequential than they may seem at first glance. There are several different ways in which detention can help prevent terrorism, including incapacitating terrorists, disrupting specific plots, deterring potential terrorists, and gathering information through interrogation. The choice of which among these preventive objectives to emphasize will, in turn, drive the way the class of individuals subject to detention is defined, with major implications for both liberty and security. The way we answer the why and whom questions will then significantly determine the procedural architectural needs of any new administrative detention regime. This article therefore cautions against jumping too quickly in administrative detention discussions to the issue of procedural design, or the how questions.

Part I of this article briefly explores the Bush administration’s approach to the why and whom questions, in particular its reliance on a theory of “enemy combatants,” and the logic behind calls to reform it through administrative detention legislation. Part II examines various strategic objectives behind administrative detention proposals, and Parts III and IV then explain how those objectives translate into different definitions of the class subject to proposed detention laws. Part V returns to the procedural issues and shows how new administrative detention processes – or perhaps even special national security courts – would likely look very different depending on the strategic choices underlying them. Rather than coming down for or against new administrative detention law, this article identifies the approaches that stand the best chance of successfully protecting security and liberty, as well as questions that should guide further consideration and refinement of the policies.

“Homeland Security, Information Policy, and the Transatlantic Alliance”

Stewart A. Baker
Steptoe & Johnson LLP

Nathan Alexander Sales
George Mason University School of Law

Abstract:

This short essay uses a recent case study – the controversy surrounding the U.S. Department of Homeland Security’s access to European airline reservation data – as a vehicle for exploring the European Union’s new enthusiasm for projecting its data-privacy values globally. We begin by discussing how DHS uses passenger name records, or “PNR,” to detect potential terrorist operatives. We then examine the legal authorities under which passenger data is collected and used, including domestic constitutional and statutory norms as well as principles of international law. Next, the essay discusses the hostile response of some EU policymakers to DHS’s use of reservation data, and offers possible explanations for their efforts to apply European data-privacy principles to American national-security initiatives. Finally, we propose solutions to transatlantic conflicts that will help preserve both individual privacy and national autonomy.

And from the intro, which I just couldn’t resist reprinting:

It’s June 14, 2003 at Chicago’s O’Hare international airport. The U.S.-led war to topple Saddam Hussein’s Ba’athist regime in Iraq was launched a little less than three months ago. Resurgent fears of terrorism have kept some would-be passengers from the skies, but O’Hare is still operating at a fairly brisk pace.

A Jordanian man named Ra’ed al-Banna is among the throng of passengers who have just arrived on KLM flight 611 from Amsterdam. After waiting in line, al-Banna presents his passport to U.S. Customs and Border Protection officers.

The CBP officers consult the computerized targeting system used to screen passengers who seek to enter the U.S. The information about al-Banna – drawn from his airline reservations and past travel – triggers a closer look. The officers examine al-Banna’s documents, and they begin asking him questions.

Something doesn’t add up. Al-Banna has a legitimate Jordanian passport; he holds a valid visa that allows him to work in the United States; and he had visited the U.S. before for a lengthy stay. But the officers aren’t satisfied that he’s being completely truthful with his answers, so they decide to refuse him admission. Al-Banna’s fingerprints are taken, and he is put on a plane back to Jordan.

So far it sounds like a fairly routine day at the border. And it was, until events in Iraq nearly two years later gave it a new, and sinister, significance.

On February 28, 2005, at about 8:30 in the morning, several hundred police recruits were lined up outside a clinic in Hilla, a city in the south of Iraq. With no warning, a car drove into the crowd and detonated a massive bomb. 132 people were killed, and about as many were wounded. At the time, it was the deadliest suicide bombing Iraq had seen.

The driver was Ra’ed al-Banna. We know that because when authorities found the steering wheel of his car, his forearm was still chained to it.

No one knows why al-Banna wanted to be in the U.S. in 2003, or what he would have done if he had gotten in. But we do know what kept him out – the government’s ability to quickly marshal the data that first triggered a closer look, and that the CBP officer later used to question al-Banna closely and to conclude that his answers weren’t satisfactory.

At the center of that system was airline reservation data, known as Passenger Name Records or “PNR.”

“The Why and How of Preventive Detention in the War on Terror“

Stephanie Cooper Blum

Department of Defense, Navy, Naval Postgraduate School ; Department of Homeland Security
Thomas Cooley Law Review, Summer 2009

Abstract:

After September 11, 2001, the Bush Administration decided to detain certain individuals suspected of being members or agents of al Qaeda or the Taliban as enemy combatants and hold them indefinitely and incommunicado for the duration of the war on terror. The rationale behind this system of preventive detention was to incapacitate suspected terrorists, facilitate interrogation, and hold them when traditional criminal charges were not feasible for a variety of reasons. While the rationale for preventive detention is legitimate and the need for preventive detention real, the Bush Administration’s approach was reactionary, illogical, and probably unconstitutional. This article explores the underlying rationales for preventive detention as a tool in this war on terror and analyzes the legal obstacles to creating a preventive-detention regime. In the end, it offers some overarching principles that could be used by Congress or President Obama’s newly-created Special Inter-Agency Task Force to enact a comprehensive preventive-detention regime for U.S persons and foreign nationals. While establishing a lawful preventive-detention regime for terrorist suspects is challenging, there appears to be room for enacting such a regime if Congress sets forth explicit legislation allowing for preventive detention and the suspects are provided a meaningful opportunity to challenge the underlying evidence.

Attachments: CACI

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

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 18^th 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 11^th, 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.

Al-Adahi v. Obama; Sharifulla v. Bush; forthcoming scholarship

1. Al-Adahi v. Obama (D.D.C. Feb. 10, 2009)

Judge Kessler has issued an opinion denying requests by two GTMO detainees for injunctive relief relating to the manner in which the military carries out forced feeding required by the petitioners’ hunger strikes.  In short, Judge Kessler determined that federal courts lack jurisdiction over conditions-of-confinement claims thanks to the Military Commissions Act, and that this aspect of the MCA was unaffected by Boumediene.  She also determined that use of a restraint chair in the feeding process most likely would not constitute “deliberate indifference” violating the Eighth Amendment (interestingly, the court appears to assume, at least for the sake of argument, that detainees have Eighth Amendment rights; perhaps in my quick skim I missed the discussion of this issue), and that a prohibition on use of restraints would expose medical personnel to danger. The full opinion appears here.

United States v. Al-Nashiri; Al-Marri v. Spagone

1. United States v. Al-Nashiri (Mil. Com.) (Hat tip to Neal Sonnett for this document)

In yet another example of the way in which ongoing litigation is pressing the Obama administration to develop its detention policies more quickly than it would like, a military commission judge has rejected a request for a stay of the scheduled February 9th arraignment of a GTMO detainee facing charges in connection with the bombing of the USS Cole.  The opinion is attached.

2. Al-Marri v. Spagone (S.Ct.)

Amicus briefs have now been filed in Al-Marri.  The briefs supporting the petitioner are collected here.  I’m not sure if there are other amicus briefs, but will circulate links if so.

forthcoming scholarship; more on the Senate Armed Services interrogation report

1. Forthcoming Scholarship

“Our Nation Unhinged:  The Human Consequences of the War on Terror”

University of California Press

Peter Jan Honigsberg

Professor of Law

University of San Francisco

honigsbergp@usfca.edu

Abstract: Jose Padilla short-shackled and wearing blackened goggles and earmuffs to block out all light and sound on his way to the dentist. Fifteen-year-old Omar Khadr crying out to an American soldier, “Kill me!” Hunger strikers at Guantánamo being restrained and force-fed through tubes up their nostrils. John Walker Lindh lying naked and blindfolded in a metal container, bound by his hands and feet, in the freezing Afghan winter night. This is the story of the Bush administration’s response to the attacks of September 11, 2001—and of how we have been led down a path of executive abuses, human tragedies, abandonment of the Constitution, and the erosion of due process and liberty. In this vitally important book, Peter Jan Honigsberg chronicles the black hole of the American judicial system from 2001 to the present, providing an incisive analysis of exactly what we have lost over the past seven years and where we are now headed.

forthcoming scholarship

* Forthcoming scholarship

Foreign Affairs Originalism in Youngstown’s Shadow

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

Stephen I. Vladeck

American University Washington College of Law

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

Boim v. Holy Land; OSI fellowship; forthcoming scholarship

1. Boim v. Holy Land Foundation for Relief & Development (7^th Cir. Dec. 3, 2008) (en banc)

Available at: http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=05-1815_083.pdf

The Boim litigation arises out of the murder by Hamas of David Boim, a dual Israeli-American citizen, near Jerusalem in 1996.  Boim’s family brought suit against Muhammad Salah and a series of organizations, arguing that they raised money for Hamas and thereby were subject to civil liability under 18 USC 2333.

The en banc 7^th Circuit, in an opinion by Judge Posner, holds confirms this theory of liability.  Among other things, the opinion holds that: