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Full-Text Articles in Law

Secret Law, Jonathan Manes Apr 2018

Secret Law, Jonathan Manes

Journal Articles

The law cannot be a secret hidden from the public. This proposition strikes most of us as uncontroversial—a basic premise of any legal order committed to democratic accountability and the rule of law. Yet in this country secret law not only exists, but has become an entrenched feature of contemporary national security governance. From NSA surveillance to terrorist watch lists to targeted killings, the most controversial national security programs of our time have all been governed by secret rules, secret directives, and secret legal interpretations.

This Article sheds new light on this deeply unsettling state of affairs. It pushes ...


National Security, Immigration And The Muslim Bans, Shoba Wadhia Jan 2018

National Security, Immigration And The Muslim Bans, Shoba Wadhia

Journal Articles

National security language has continued to guide the creation and defense of Executive Orders and related immigration policies issued in the Donald J. Trump administration. This Article builds on earlier scholarship examining the relationship between national security and immigration in the wake of September 11, 2001, under the Obama administration, and during the campaign leading to the 2016 Election. While the Article is largely descriptive, it ultimately questions the longevity of using national security to create and defend immigration law. This Article is limited in scope -- it does not provide a deep dive into the constitutionality of the Muslim bans ...


Is Immigration Law National Security Law?, Shoba S. Wadhia Jan 2016

Is Immigration Law National Security Law?, Shoba S. Wadhia

Journal Articles

The debate around how to keep America safe and welcome newcomers is prominent. In the last year, cities and countries around the world, including Baghdad, Dhaka, Istanbul, Paris, Beirut, Mali and inside the United States - have been vulnerable to terrorist attacks and human tragedy. Meanwhile, the world faces the largest refugee crises since the Second World War.

This article is based on remarks delivered at Emory Law Journal’s annual Thrower Symposium on February 11, 2016. It explores how national security concerns have shaped recent immigration policy in the Executive Branch, Congress and the states and the moral, legal and ...


The Need To Refocus The U.S. Government's Post-9/11 Counter-Terrorist Financing Strategy Directed At Al Qaeda To Target The Funding Of Isis, Jimmy Gurule Jan 2016

The Need To Refocus The U.S. Government's Post-9/11 Counter-Terrorist Financing Strategy Directed At Al Qaeda To Target The Funding Of Isis, Jimmy Gurule

Journal Articles

The Islamic State of Iraq and Syria ("ISIS") is the most deadly and well-funded foreign terrorist organization in the world. There are estimates that ISIS has an annual budget of over $2 billion to finance its goal of establishing a caliphate, or Islamic state, governed by its twisted version of Islamic law.1 Flush with funds, the terror group has acquired and controls large swaths of territory in Syria and Iraq, and the threat it poses extends to Jordan, Saudi Arabia, Egypt, Libya, Yemen, Lebanon, and beyond. 2 While depriving ISIS of funding is a central component of the United ...


The Rise Of Speed Deportation And The Role Of Discretion, Shoba S. Wadhia Jan 2014

The Rise Of Speed Deportation And The Role Of Discretion, Shoba S. Wadhia

Journal Articles

In 2013, the majority of people deported never saw a courtroom or immigration judge. Instead, they were quickly removed by the Department of Homeland Security via one of several procedures collectively referred to as “speed deportation.” The policy goals of speed deportation are economic; these processes save government resources from being spent on procedural safeguards such as a trial attorney, immigration judge, and a fundamentally fair hearing. Higher deportation numbers may also benefit the image the government seeks to portray to policymakers who support amplified immigration enforcement. However, the human consequences of speed deportation are significant and can result in ...


The Hidden Costs Of Terrorist Watch Lists, Anya Bernstein May 2013

The Hidden Costs Of Terrorist Watch Lists, Anya Bernstein

Journal Articles

Courts have started to recognize standing to sue for those on the government’s No Fly List, which bars listed individuals from flying. This salutary step, however, leaves untouched the complex watch list infrastructure on which the No Fly List is built and whose flaws it inherits. Lower-profile watch lists have fewer determinate consequences on listed individuals than the No Fly List does. But, this article argues, they exact substantial costs.

This article first explains why the incentive structure of terrorist watch lists encourages government agencies to list more people than necessary and not to check their work. It then ...


Book Review, Angela Mae Kupenda Jan 2013

Book Review, Angela Mae Kupenda

Journal Articles

LIBERTY & SECURITY, authored by Human Rights Law Professor Conor Gearty, is a book that is relevant and fills a void through the question it explores. Gearty, while admitting that the terms liberty and security are susceptible to a host of meanings, does not seek in this book to define a more precise meaning for these terms. Rather, the book focuses on the “for how many” question (p.2). Gearty asks and answers whether liberty and security are “to be for all or just the few?”


Adhering To Law And Values Against Terrorism, Mary Ellen O'Connell Jan 2012

Adhering To Law And Values Against Terrorism, Mary Ellen O'Connell

Journal Articles

No abstract provided.


The Self-Judging Wto Security Exception, Roger P. Alford Jan 2011

The Self-Judging Wto Security Exception, Roger P. Alford

Journal Articles

This Article analyzes the WTO security exception, with a particular focus on State practice. In the absence of any GATT or WTO jurisprudence, State practice affords the best vehicle to understand the meaning of Article XXI. In the few instances when invocation of the security exception has been challenged, State practice suggests that the security exception is not judicially reviewable.

A critical question emerges from this analysis of State practice. If a Member State can avoid WTO obligations through a self-judging security exception, what is to prevent bad faith invocations? The WTO regime includes a number of devices to address ...


The Choice Of Law Against Terrorism, Mary Ellen O'Connell Jan 2010

The Choice Of Law Against Terrorism, Mary Ellen O'Connell

Journal Articles

The Obama administration has continued to apply the wartime paradigm first developed by the Bush administration after 9/11 to respond to terrorism. In cases of trials before military commissions, indefinite detention, and targeted killing, the U.S. has continued to claim wartime privileges even with respect to persons and situations far from any battlefield. This article argues that both administrations have made a basic error in the choice of law. Wartime privileges may be claimed when armed conflict conditions prevail as defined by international law. These privileges are not triggered by declarations or policy preferences.


International Human Rights Law And Security Detention, Douglass Cassel Jan 2009

International Human Rights Law And Security Detention, Douglass Cassel

Journal Articles

This article analyzes the grounds, procedures, and conditions required by International Human Rights Law for preventive detention of suspected terrorists as threats to security. Such detention is generally permitted, provided it is based on grounds and procedures previously established by law; is not arbitrary, discriminatory, or disproportionate; is publicly registered and subject to fair and effective judicial review; and the detainee is not mistreated and is compensated for any unlawful detention. In Europe, however, preventive detention for security purposes is generally not permitted. If allowed at all, it is permitted only when a State in time of national emergency formally ...


The Memory Gap In Surveillance Law, Patricia L. Bellia Jan 2008

The Memory Gap In Surveillance Law, Patricia L. Bellia

Journal Articles

U.S. information privacy laws contain a memory gap: they regulate the collection and disclosure of certain kinds of information, but they say little about its retention. This memory gap has ever-increasing significance for the structure of government surveillance law. Under current doctrine, the Fourth Amendment generally requires government agents to meet high standards before directly and prospectively gathering a target's communications. The law takes a dramatically different approach to indirect, surveillance-like activities, such as the compelled production of communications from a third party, even when those activities yield the same information as, or more information than, direct surveillance ...


Liberty, Judicial Review, And The Rule Of Law At Guantanamo: A Battle Half Won, Doug Cassell Jan 2008

Liberty, Judicial Review, And The Rule Of Law At Guantanamo: A Battle Half Won, Doug Cassell

Journal Articles

In Boumediene v. Bush, 128 S. Ct. 2229 (2008), five members of the Supreme Court held that foreign prisoners at Guantanamo enjoy the constitutional privilege of habeas corpus; that their imprisonment had lasted too long for the Court to await completion of statutory review by lower courts of military tribunal findings that the prisoners were "enemy combatants"; and that the statutory judicial review was too deficient to substitute for the Great Writ.

Four Justices vigorously dissented. On the surface they differed on the history of the reach of the common law writ of habeas corpus, and on the procedural guarantees ...


Defending Human Rights In The "War" Against Terror, Douglass Cassel Jan 2006

Defending Human Rights In The "War" Against Terror, Douglass Cassel

Journal Articles

No abstract provided.


Legislative Responses To Terrorism: A View From Britain, Geoffrey Bennett Jan 2005

Legislative Responses To Terrorism: A View From Britain, Geoffrey Bennett

Journal Articles

No abstract provided.


The "Lone Wolf" Amendment And The Future Of Foreign Intelligence Surveillance Law, Patricia E. Simone, Patricia L. Bellia Jan 2005

The "Lone Wolf" Amendment And The Future Of Foreign Intelligence Surveillance Law, Patricia E. Simone, Patricia L. Bellia

Journal Articles

In December 2004, Congress adopted an important change to the statutory framework authorizing domestic surveillance of foreign powers and their agents, the Foreign Intelligence Surveillance Act (FISA). The change, directly prompted by the events of September 11, 2001, makes it easier for the government to conduct surveillance of so-called lone wolf terrorists - that is, terrorists who act in sympathy with the aims of an international terrorist group but not on its behalf, or terrorists whose link to an international terrorist group cannot be demonstrated.

Although the logic of the lone wolf amendment at first seems quite compelling, the amendment offers ...


Race, Immigration, And The Department Of Homeland Security, Victor C. Romero Jan 2004

Race, Immigration, And The Department Of Homeland Security, Victor C. Romero

Journal Articles

Despite the wisdom of separating the service and enforcement functions of our immigration bureau, the new tripartite system under the auspices of the Department of Homeland Security risks fueling the "immigrant Arab as terrorist" stereotype, rather than helping to re-establish the reality that noncitizen terrorists, like U.S. citizen ones, are a rare species.


The Legal Case Against The Global War On Terror, Mary Ellen O'Connell Jan 2004

The Legal Case Against The Global War On Terror, Mary Ellen O'Connell

Journal Articles

No abstract provided.


Decoupling 'Terrorist' From 'Immigrant': An Enhanced Role For The Federal Courts Post 9/11, Victor C. Romero Jan 2003

Decoupling 'Terrorist' From 'Immigrant': An Enhanced Role For The Federal Courts Post 9/11, Victor C. Romero

Journal Articles

Since the terrorist attacks of September 11, 2001, Attorney General John Ashcroft has utilized the broad immigration power ceded to him by Congress to ferret out terrorists among noncitizens detained for minor immigration violations. Such a strategy provides the government two options: deport those who are not terrorists, and then prosecute others who are. While certainly efficient, using immigration courts and their less formal due process protections afforded noncitizens should trigger greater oversight and vigilance by the federal courts for at least four reasons: First, while the legitimate goal of immigration law enforcement is deportation, Ashcroft's true objective in ...


Noncitizen Students And Immigration Policy Post-9/11, Victor C. Romero Jan 2003

Noncitizen Students And Immigration Policy Post-9/11, Victor C. Romero

Journal Articles

The purpose of this article is to describe the post-9/11 world for noncitizen students and scholars in light of recent federal legislation, specifically focusing on three laws: the USA-PATRIOT Act of 2001, the Border Commuter Student Act of 2002, and the proposed Capital Student Adjustment Act, currently pending in Congress. In all three, Congress is seen trying to walk the fine line between providing fair access to postsecondary education to noncitizen students and guarding against the possibility that such institutions are being used as a springboard for terrorist activity.


To Kill Or Capture Suspects In The Global War On Terror, Mary Ellen O'Connell Jan 2003

To Kill Or Capture Suspects In The Global War On Terror, Mary Ellen O'Connell

Journal Articles

Presents a speech by law professor Mary Ellen O'Connell, delivered at the Case Western Reserve School of Law's War Crimes Research Symposium, February 28, 2003. Legal implications of pursuing terror suspects using military action by the U.S. government; Components of armed conflict; Analysis of the United States' involvement in the internal armed conflict in the Philippines.


American Exceptionalism And The International Law Of Self-Defense, Mary Ellen O'Connell Jan 2002

American Exceptionalism And The International Law Of Self-Defense, Mary Ellen O'Connell

Journal Articles

No abstract provided.


God Bless America, John J. Coughlin Jan 2002

God Bless America, John J. Coughlin

Journal Articles

No abstract provided.


Terrorism, Territorial Sovereignty, And The Forcible Apprehension Of International Criminals Abroad, Jimmy Gurule Jan 1994

Terrorism, Territorial Sovereignty, And The Forcible Apprehension Of International Criminals Abroad, Jimmy Gurule

Journal Articles

Examines current international law governing use of force extraterritorially; in light of the Alvarez-Machain case in which a Mexican national suspected of murder was forcibly extradited to stand trial in the US.


The Command And Control Of United Nations Forces In The Era Of "Peace Enforcement", James W. Houck Jan 1993

The Command And Control Of United Nations Forces In The Era Of "Peace Enforcement", James W. Houck

Journal Articles

This Article explores how concerns regarding the United Nations' authority to make political, strategic, and operational decisions that comprise the right to command and control UN forces might be reconciled within the framework of the United Nations Charter to create a contemporary and more enduring regime for the command and control of United Nations forces. As Part II demonstrates, command and control issues are not new to the United Nations; indeed, in 1945 the signatories to the United Nations Charter created a model for the command and control of United Nations forces.

While the cold war ensured that this model ...


A Proposed Electronic Surveillance Control Act, G. Robert Blakey, James A. Hancock Jan 1968

A Proposed Electronic Surveillance Control Act, G. Robert Blakey, James A. Hancock

Journal Articles

No abstract provided.