Law Commons^™

Terror And The Law: The Limits Of Judicial Reasoning In The Post-9/11 World (Review Essay), Curtis A. Bradley

Faculty Scholarship

reviewing, Benjamin Wittes, Law and the Long War: The Future of Justice in the Age of Terror (2008)

Lawfare Today: A Perspective, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Preferring Defects: The Jurisdiction Of Military Commissions, Madeline Morris, Allison Hester-Haddad

Faculty Scholarship

No abstract provided.

Taking Liberties: The Personal Jurisdiction Of Military Commissions, Madeline Morris

Faculty Scholarship

On September 11, 2001, Al Qaeda operatives attacked civilian and military targets on US territory, causing thousands of deaths and billions of dollars of economic loss. The next day, the United Nations Security Council unanimously adopted Resolution 1368 characterizing the attack by Al Qaeda as a "threat to international peace and security" and recognizing the right of states to use armed force in self defense.

Tribunal-Hopping With The Post-Conflict Justice Junkies, Elena Baylis

Articles

The field of post-conflict justice is characterized in no small part by international interventions into post-conflict settings. International interveners invest substantial resources toward the goals of post-conflict justice, including creating legal accountability for atrocities and rebuilding local and national justice systems that respect human rights and rule of law. The aims of post-conflict justice and the mechanisms by which the international community can contribute to post-conflict legal institutions and processes have been and continue to be studied intensively.

But while the institutions, processes, and goals of post-conflict justice have been carefully scrutinized, another aspect of international interventions into post-conflict justice …

Globalization, Legal Transnationalization And Crimes Against Humanity: The Lipietz Case, Vivian Grosswald Curran

Articles

Decided in June, 2006, the Lipietz case marks the unofficial entry into the French legal system of a tort action for complicity in crimes against humanity. It both departs from prior, established French law and reflects numerous mechanisms by which national law is transnationalizing. The case illustrates visible, invisible, substantive and methodological changes that globalization is producing as law's transnationalization changes national law. It also suggests some of the difficulties national legal systems face as their transnationalization produces legal change at a rate that outpaces the national capacity for efficient adaptation. The challenges illustrated by Lipietz, characteristic of globalization, include …

Preventing, Implementing And Enforcing International Humanitarian Law, Juan E. Mendez

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Assumptions Behind The Assumptions In The War On Terror: Risk Assessment As An Example Of Foundational Disagreement In Counterterrorism Policy, Kenneth Anderson

Articles in Law Reviews & Other Academic Journals

This 2007 article (based around an invited conference talk at Wayne State in early 2007) addresses risk assessment and cost benefit analysis as mechanisms in counterterrorism policy. It argues that although policy is often best pursued by agreeing to set aside deep foundational differences, in order to obtain a strategic plan for an activity such as counterterrorism, foundational differences must be addressed in order that policy not merely devolve into a policy minimalism that is always and damagingly tactical, never strategic, in order to avoid domestic democratic political conflict. The article takes risk assessment in counterterrorism, using cost benefit analysis, …

Gentlemen Under Fire: The U.S. Military And "Conduct Unbecoming", Elizabeth L. Hillman

Faculty Scholarship

No abstract provided.

Rethinking The Political Future: An Alternative To The Ethno-Sectarian Division Of Iraq, Paul Williams, Matt Simpson

Articles in Law Reviews & Other Academic Journals

In the coming year, the political leadership in Iraq will need to make a final determination as to whether they are going to structure the state of Iraq as a federal state with ethnically heterogeneous provinces, a loose federal state with ethnically defined provinces or regions, or whether they are going to divide the state into three new states based on ethno-sectarian lines.

A number of prominent American law makers and foreign policy shapers have strongly advocated for the soft, and sometimes hard, partition of Iraq — either through the creation of a loose federal structure based on ethno-sectarian lines, …

Judicial Power And Moral Ideology In Wartime: Shaping The Legal Process In World War I Britain , Rachel Vorspan

Faculty Scholarship

Offering a cautionary lesson of contemporary significance, the Article suggests that judicial power is not in and of itself the solution to executive infringements on due process rights in wartime. It examines the response of the British judiciary to serious threats to its institutional power during the First World War. To facilitate prosecution of the war, the government narrowed the jurisdiction of the traditional courts by eliminating jury trial, subjecting civilians to court-martial, and establishing new administrative tribunals to displace the traditional courts. Rather than remaining passive and deferential to the executive, as scholars have generally assumed, the judges moved …

Military Lawyering And Professional Independence On The War On Terror : A Response To David Luban, Charles J. Dunlap Jr., Linell A. Letendre

Faculty Scholarship

No abstract provided.

The Co-Perpetrator Model Of Joint Criminal Enterprise, Jens David Ohlin

Cornell Law Faculty Publications

No abstract provided.

Shortchanging The Joint Fight? An Airman’S Assessment Of Fm 3-24 And The Case For Developing Truly Joint Coin Doctrine, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Torture And The Biopolitics Of Race, Dorothy E. Roberts

All Faculty Scholarship

No abstract provided.

The Rise Of Outsourcing In Modern Warfare : Sovereign Power, Private Military Actors, And The Constitutive Process, Winston P. Nagan, Craig Hammer

UF Law Faculty Publications

In this Article, we will examine the world order implications of combat privatization through the prism of the world constitutive process. This process is one of continuing communication and collaboration that examines, refines, and allocates competence in the international system. The process of contextual mapping might shed light on the terms associated with, and concepts communicated by, privatized military combat, which might be better understood when the contexts in which they are used are illuminated in a discriminating manner. Their multiple meanings are given coherence when we appreciate the divergent contexts within which they are used. To develop the appropriate …

Can Might Make Right? The Use Of Force To Impose Democracy And The Arthurian Dilemma In The Modern Era, Scott Thompson

Publications

This article explains that under international law nations are not permitted to use force to impose democracy on other nations and that such an approach is also impracticable and undesirable from a policy perspective.

Symposium 2008: The United Nations Genocide Convention: A 60th Anniversary Commemoration: Keynote Address, Juan E. Mendez

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Who Is A Terrorist - Drawing The Line Between Criminal Defendants And Military Enemies, Benjamin Priester

Journal Publications

The threat of terrorist attacks by al Qaeda and other transnational terrorist organizations is a constant topic of public discourse in the United States. Despite its prominence, the nature of that threat is notoriously difficult to define. On the one hand, terrorists might be compared to other kinds of organized, dangerous criminals who should be prosecuted and punished using the federal criminal law. On the other hand, terrorists might be compared to enemy soldiers engaged in warfare against the United States. There are problems with either approach, however, because the threat posed by al Qaeda and other transnational terrorist organizations …

Silence Of The Laws? Conceptions Of International Relations And International Law In Hobbes, Kant, And Locke, Michael W. Doyle, Geoffrey S. Carlson

Faculty Scholarship

This Essay explains how the political theorists Hobbes, Kant, and Locke interpret the decision to go to war (us ad bellum) and the manner in which the war is conducted (just in bello). It also considers the implications of the three theories for compliance with international law more generally. It concludes that although all three can lay claim to certain key features of modern international law, it is Locke who provides the most complete support for both the laws of war, in particular, and with international law, in general.

Don’T Ask, Don’T Tell: A Dying Policy On The Precipice, Robert I. Correales

Scholarly Works

This article examines the labyrinth of statutes, regulations and directives that composed “Don’t Ask, Don’t Tell,” a policy which those suspected of being gay or lesbian find difficult, if not impossible, to escape. It also analyzes the real-world and military consequences of the de facto ban and the effects of the moral condemnation of gays and lesbians by the U.S. Supreme Court upon deliberations of the policy in Congress and upon lower courts that have presided over challenges to the policy. Relying heavily on the legislative history of “Don’t Ask, Don’t Tell,” and the social and political context under which …

A Tale Of Two Networks: Terrorism, Transnational Law, And Network Theory, Christopher J. Borgen

Faculty Publications

Talk of networks and "network theory" has become almost ubiquitous in the field of counterterrorism. Terrorist organizations are networks. Terrorists have been empowered by the Internet, ethnic diasporas, and cell phones—networks all. Many of the putative targets of terrorists—electrical grids, oil pipelines, and transportation systems, to name a few—are themselves networks. And, perhaps less often mentioned, terrorists are increasingly hampered by national and international laws that foster cooperation and coordination among states—a network of laws.

From "smart mobs" to "net wars," from narco-trafficking to the Internet, network theory has provided insights into decentralized social organizations and their coordinated action. Both …

Fighting Women: The Military, Sex, And Extrajudicial Constitutional Change, Jill Elaine Hasday

Georgetown Law Faculty Publications and Other Works

The Supreme Court in Rostker v. Goldberg (1981) upheld male-only military registration, and endorsed male-only conscription and combat positions. Few cases have challenged restrictions on women's military service since Rostker, and none have reached the Supreme Court. Federal statutes continue to exclude women from military registration and draft eligibility, and military regulations still ban women from some combat positions. Yet many aspects of women's legal status in the military have changed in striking respects over the past quarter century while academic attention has focused elsewhere. Congress has eliminated statutory combat exclusions, the military has opened many combat positions to women, …

A Running Start: Getting “Law Ready” During A Presidential Transition, James E. Baker

Georgetown Law Faculty Publications and Other Works

We are headed for our first wartime Presidential transition in forty years. The good news is that this has prompted uncommon attention to the process of transition. The bad news is that transitions are difficult in the best of circumstances; forewarned does not always equal prepared. The United States handles transitions well on a strategic level. Strategic continuity is found in the Constitution. Transition is also part of the rhythm of government. The intelligence community, for example, has a sound tradition of briefing candidates and Presidents-elect. However, there is tactical vulnerability. An outgoing administration may hesitate to initiate all but …

Detention As Targeting: Standards Of Certainty And Detention Of Suspected Terrorists, Matthew C. Waxman

Faculty Scholarship

To the extent that a state can detain terrorists pursuant to the law of war, how certain must the state be in distinguishing suspected terrorists from nonterrorists? This Article shows that the law of war can and should be interpreted or supplemented to account for the exceptional aspects of an indefinite conflict against a transnational terrorist organization by analogizing detention to military targeting and extrapolating from targeting rules. A targeting approach to the detention standard-of-certainty question provides a methodology for balancing security and liberty interests that helps fill a gap in detention law and helps answer important substantive questions left …

Less Safe, Less Free: A Progress Report On The War On Terror: Address To The Terrorism & Justice Conference At The University Of Central Missouri, David Cole

Georgetown Law Faculty Publications and Other Works

The Bush Administration since 9-11 has adopted a strategy, which in some sense depends upon the ability to predict with incredible accuracy at what will happen in the future. It was given its name by the U.S. Attorney General during the first Bush Administration, Missouri’s John Ashcroft, who argued that what we need in the wake of 9-11 is a “preventive paradigm.” The argument is understandable: when facing foes who are willing to commit suicide in order to inflict mass casualties on innocent civilians, it is not enough to bring them to justice after the fact. The perpetrators are dead--and …

Constitutional Overview Of Post-9/11 Barriers To Free Speech And A Free Press, Nadine Strossen

Articles & Chapters

No abstract provided.

The Twenty Year Test: Principles For An Enduring Counterterrorism Legal Architecture, James E. Baker

Georgetown Law Faculty Publications and Other Works

The United States faces three enduring terrorism-related threats. First, there is the realistic prospect of additional attacks in the United States including attacks using weapons of mass destruction (“WMD”). Second, in responding to this threat, we may undermine the freedoms that enrich our lives, the tolerance that marks our society, and the democratic values that define our government. Third, if we are too focused on terrorism, we risk losing sight of this century’s other certain threats as well as the capacity to respond to them, including the state proliferation of nuclear weapons, nation-state rivalry, pandemic disease, oil dependency, and environmental …

Lawfare And Legal Ethics In Guantánamo, David Luban

Georgetown Law Faculty Publications and Other Works

This paper, part of a symposium on the legal profession, focuses on the lawyers – some civilian and some military – who represent detainees at Guantánamo Bay. These include civilian counsel representing Guantánamo prisoners in habeas proceedings, as well as civilian and military defense counsel for those facing trial before military commissions. Using published sources as well as interviews with some of the lawyers, the paper examines the tactics by which the U.S. government has tried to disrupt the effective representation of Guantánamo detainees. In the case of habeas lawyers, whose very presence at Guantánamo is unwelcome by the government, …

Tinkering With Torture In The Aftermath Of Hamdan: Testing The Relationship Between Internationalism And Constitutionalism, Catherine Powell

Georgetown Law Faculty Publications and Other Works

Bridging international and constitutional law scholarship, the author examines the question of torture in light of democratic values. The focus in this article is on the international prohibition on torture as this norm was addressed through the political process in the aftermath of Hamdan v. Rumsfeld. Responding to charges that the international torture prohibition--and international law generally--poses irreconcilable challenges for democracy and our constitutional framework, the author contends that by promoting respect for fundamental rights and for minorities and outsiders, international law actually facilitates a broad conception of democracy and constitutionalism. She takes on the question of torture within …