Law Commons^™

Going It Alone: The Terror Presidency: Justice And Judgment Inside The Bush Administration, Kenneth Anderson

Book Reviews

Jack Goldsmith's The Terror Presidency is one of the most important evaluations of the Bush Administration's War on Terror to come from inside the administration. More than just a memoir, the book offers a cogent historical and legal analysis of the profound dilemmas that confront administration officials caught between competing demands of protecting the American public while respecting civil liberties. The review sympathetically considers the issues as presented in the book, and traces through the ways in which these difficult matters, all the ones that have confronted the Bush administration and created so many political disputes, will continue to confront …

The Man Behind The Torture, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Of Exigent Circumstances And Constitutional Authority: Congress, The President, And Domestic Electronic Surveillance, Lawrence Friedman, Victor Hansen

Lawrence Friedman

In this article, we argue that the constitutional structures and doctrines that functioned well before September 11 have not become liabilities since then. In particular, the relative powers the Constitution allocates between the Congress and the President in matters of national security have, in the light of experience, served the nation well and are likely to continue to do so, for the careful balance the framers struck between legislative and executive authority has the virtue of adaptability to a changing—and dangerous—world. Further, experience has demonstrated that the Constitution’s default lawmaking scheme, which centers on bicameral legislative enactment, presentment, and all …

Domestic Surveillance For International Terrorists: Presidential Power And Fourth Amendment Limits, Richard H. Seamon

Richard H Seamon

After 9/11, the President authorized the National Security Agency to conduct warrantless electronic surveillance of American residents. Critics of this so called “Terrorist Surveillance Program” (TSP) say it violates the Foreign Intelligence Surveillance Act of 1978 (FISA) and the Fourth Amendment. Defenders of the TSP counter that, regardless whether it violates FISA, it falls within the President's congressionally irreducible power to protect national security and within the relaxed Fourth Amendment governing national security searches. This article focuses on the overlooked connection between the issues of whether the TSP (1) falls within the President’s powers; or (2) violates the Fourth Amendment. …

The Grand Inquisitors, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Just When I Thought I Was Out, They Pull Me Back In: Executive Power And The Novel Reclassification Authority, Luppe B. Luppen

Washington and Lee Law Review

No abstract provided.

The Cia’S Public Operational Files: Accessing Files Exempt From The Cia Information Act Of 1984 Because Of Investigations Into Illegal Or Improper Activity., Hannah H. Bergman

Hannah H Bergman

The CIA Information Act of 1984 was a deal made to speed the CIA’s processing of Freedom of Information Act requests while protecting information unlikely to be released because of national security concerns. But today, the CIA refuses to abide by Congress’s intent as it routinely refuses to search its operational files – particularly the files which have been subject to an investigation and which Congress intended to be public. This paper examines the legislative history behind the 1984 Act, focusing on arguments CIA officials made before Congressional committees while pushing for the Act’s passage. The paper then explores the …

Strategic Planning For Combating Terrorism: A Critical Examination, Arsalan Suleman

Arsalan Suleman

This article engages in a thorough assessment of the Bush Administration's main security strategy documents related to combating terrorism, namely the 2002 and 2006 National Security Strategy documents, the 2003 National Strategy for Combating Terrorism, and the 2006 National Military Strategic Plan for the War on Terrorism. First, the article assesses the value and importance of strategy documents and the utility in analyzing them. Second, the strategies are analyzed based on the process by which they were authored, the structural elements of the strategy, and the strategy's content. Third, the article discusses the overall content of counter-terrorism strategy and makes …

The Nsa Phone Call Database: The Problematic Acquisition And Mining Of Call Records In The United States, Canada, The United Kingdom, And Australia, Andrew P. Macarthur

Duke Journal of Comparative & International Law

No abstract provided.

Punish Or Surveil, Diane Marie Amann

Scholarly Works

This Article endeavors to paint a fuller picture of previous practice and present options than is often present in debates about the United States' antiterrorism measures. It begins by describing practices in place before the campaign launched after September 11, 2001. The Article focuses on punishment, the first prong of the policy long used to combat threats against the United States. Ordinary civilian and military courts stood ready to punish persons found guilty at public trials that adhered to fairness standards, and national security interests not infrequently were advanced through such courts. That is not to say that courts were …

Give Peace A Chance: How Considering Peace Process Obligations Would Have Improved The Rulings Of The International Court Of Justice And The Israeli Supreme Court On The Israeli Security Barrier, Charles F. Martel

Duke Journal of Comparative & International Law

No abstract provided.

Assessing The Legality Of Counterterrorism Measures Without Characterizing Them As Law Enforcement Or Military Action, Gregory E. Maggs

Gregory E. Maggs

My Article is called: “Assessing the Legality of Counterterrorism Measures without Characterizing them as Law Enforcement or Military Action.” In this article, I develop three theses:

First, I claim that disagreements about the legality of counterterrorism measures commonly stem from disagreements about whether to characterize the measures as law enforcement efforts or as military actions. Observers who see the measures as methods of controlling crime assess their lawfulness differently from those who see them as a form of warfare against terrorists because criminal law enforcement rules differ substantially from the laws of war. With many specific examples, I show that …

The Media And National Security, Robert A. Sedler

Law Faculty Research Publications

In our discussion of the media and national security, we begin with the First Amendment, not only with its legal doctrines and principles, but also with the values of the First Amendment and its function in a free and democratic society. We will first discuss how the First Amendment protects the media with respect to its disclosure of information purportedly affecting national security. We will then discuss the process by which the media voluntarily refuses to publish information on the ground that the disclosure of the information will seriously harm the national security. We will finally discuss the relationship between …

Border Vigilantism And Comprehensive Immigration Reform, Christopher J. Walker

Christopher J. Walker

While many actors and conditions contribute to the problems at the border, one set of actors has been unexplainably missing from the literature and policy analysis: border vigilantes. These vigilantes have painted the border as a dangerous locus of criminal and terrorist activity, necessitating concerned citizen sentinels. They have blitzed the public with portrayals about the number of migrants crossing the border illegally and the need for law enforcement to increase border protection. Their message is powerful because they back their rhetoric with action: these individuals camp out near popular desert border-crossing points, document the rate of undocumented migration, and …

The Dark Side Of Counterterrorism

William Mitchell Law Review

No abstract provided.

Documents, Leaks, And The Boundaries Of Expression: Government Whistleblowing In An Over Classified Age, Susan Nevelow Mart

Publications

No abstract provided.

The Impact Of A Knee-Jerk Reaction: The Patriot Act Amendments To The Foreign Intelligence Surveillance Act And The Ability Of One Word To Erase Established Constitutional Requirements, Joshua H. Pike

Hofstra Law Review

No abstract provided.

Sending The Bureaucracy To War, Elena Baylis, David Zaring

Articles

Administrative law has been transformed after 9/11, much to its detriment. Since then, the government has mobilized almost every part of the civil bureaucracy to fight terrorism, including agencies that have no obvious expertise in that task. The vast majority of these bureaucratic initiatives suffer from predictable, persistent, and probably intractable problems - problems that contemporary legal scholars tend to ignore, even though they are central to the work of the writers who created and framed the discipline of administrative law.

We analyze these problems through a survey of four administrative initiatives that exemplify the project of sending bureaucrats to …

Electronic Surveillance Of Terrorism: The Intelligence/Law Enforcement Dilemma - A History, William Funk

Faculty Articles

The Foreign Intelligence Surveillance Act (FISA) has been much in the news. Because the requirements for a judicial warrant under FISA do not require the traditional showings for electronic surveillance for law enforcement purposes, one of the issues relating to EISA is the extent to which surveillance under that Act may be undertaken for the purposes of criminal law enforcement, rather than for obtaining foreign counterintelligence or counterterrorism information. This issue became particularly salient after 9/11 when at the administration's urging Congress passed an amendment to KISA in the USA PATRIOT Act that eliminated the previous requirement that "the purpose" …

Assessing The Legality Of Counterterrorism Measures Without Characterizing Them As Law Enforcement Or Military Action, Gregory E. Maggs

GW Law Faculty Publications & Other Works

In this article, I develop three theses. First, I claim that disagreements about the legality of counterterrorism measures commonly stem from disagreements about whether to characterize the measures as law enforcement efforts or as military actions. Observers who see the measures as methods of controlling crime assess their lawfulness differently from those who see them as a form of warfare against terrorists because criminal law enforcement rules differ substantially from the laws of war. With many specific examples, I show that disputes about legality based on disagreements over characterization have arisen in at least eight different subject areas, ranging from …

Hamdan Confronts The Military Commissions Act Of 2006, George P. Fletcher

Faculty Scholarship

In 2006 the law of war experienced two major shock waves. The first was the decision of the Supreme Court in Hamdan, which represented the first major defeat of the President's plan, based on an executive order of November 2001, to use military tribunals against suspected international terrorists. The majority of the Court held the procedures used in the military tribunal against Hamdan violated common article three of the Geneva Conventions. A plurality offour, with the opinion written by Justice Stevens, based their decision as well on afar-reaching interpretation of the substantive law of war. They held that conspiracy …

Lawfare: Terrorism & The Courts

William Mitchell Law Review

No abstract provided.

Special Tactics For A Secret War

William Mitchell Law Review

No abstract provided.

The Power Of Information: The Clash Between The Public's Right To Know And The Government's Security Concerns In A Post-September 11th World, Adam S. Davis

William Mitchell Law Review

No abstract provided.

The Balance Of Power: The Supreme Court's Decision On Military Commissions And The Competing Interests In The War On Terror, Josiah Ramsey Fricton

William Mitchell Law Review

No abstract provided.

This Call May Be Monitored: Is Nsa Wiretapping Legal?

William Mitchell Law Review

No abstract provided.