Law Commons^™

Panel 1: Are Adequate Legal Frameworks In Place At The Domestic Level?: Domestic Incorporation Of Obligations Under The Convention Against Torture, Claudio Grossman

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Saving Private Ryan's Tax Refund, Francine J. Lipman

Scholarly Works

No abstract provided.

Heller, Citizenship, And The Right To Serve In The Military, Elizabeth L. Hillman

Faculty Scholarship

No abstract provided.

The Ethical Dimensions Of National Security Law, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Towards A Cyberspace Legal Regime In The Twenty-First Century: Considerations For American Cyber-Warriors, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

After Guantanamo: War, Crime, And Detention, Madeline Morris, Frances A. Eberhard, Michael A. Watsula

Faculty Scholarship

Neither the law of war nor the criminal law, alone or in combination, provides an adequate legal structure for responding to the most serious threats posed by Al Qaeda and similar groups. After identifying the limits of the criminal law and the law of war for these purposes, this article outlines a comprehensive proposal for counterterrorism prosecution and detention policy. Appended to the article is the draft Counterterrorism Detention, Treatment and Release Act. The legislation proposed: 1) defines the category of persons to be subject to detention; 2) delineates procedures for identifying individuals falling within that category; 3) provides a …

The United States, Israel, And Unlawful Combatants, Curtis A. Bradley

Faculty Scholarship

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, …

Prosecuting Alleged Terrorists By Military Commission: A Prudent Option, Scott L. Silliman

Faculty Scholarship

President Obama has announced that the detention facility at Guantánamo Bay will be closed by January 22, 2010. He has also said that at least some of the detainees facing criminal prosecution will be tried in military commissions. The system of military commissions established by President Bush after the 9/11 attacks, as well as the one which Congress enacted in 2006 following the Supreme Court’s Hamdan decision, were widely criticized as being unproductive and not meeting international legal standards. The Congress has, very recently, revised the rules and procedures for military commissions to make them fair, effective and much more …

Law From Above: Unmanned Aerial Systems, Use Of Force, And The Law Of Armed Conflict, Chris Jenks

Faculty Journal Articles and Book Chapters

The United States employing armed unmanned aerial systems (UAS) or “drones” against al qaeda and Taliban targets in northwest Pakistan continues to spur discussion and disagreement. Some label UAS “armed robotic killers,” while others describe them as providing a much greater degree of distinction between intended targets and the surrounding population and infrastructure, thus limiting civilian casualties and property damage. The overt disagreement as to whether the strikes are legal masks that the discussants are utilizing wholesale different methodologies, talking past each other in the process. The origin of this divergence is to what extent the law of armed conflict …

Out Of The Shadows: Preventive Detention, Suspected Terrorists, And War, David Cole

Georgetown Law Faculty Publications and Other Works

This article examines the appropriate and inappropriate role of "preventive detention" in responding to terrorist threats. It offers a constitutional jurisprudence of preventive detention, maintaining that absent a showing that dangerous behaviour cannot be addressed through criminal prosecution, preventive detention is unconstitutional. But criminal prosecution is not always a realistic option, and in those circumstances, preventive detention, carefully circumscribed and meticulously safeguarded by procedural protections, may be permissible. Familiar examples of accepted preventive detention regimes include civil commitment of dangerous persons who because of a mental disability cannot be held criminally responsible, and detention of enemy soldiers in a traditional …

Deceit In War And Trade, William I. Miller

Book Chapters

This chapter offers “a genealogy on deceit in war and trade”. It starts with deceit in Ovid and the Old Testament and works its way all the way up to the present day, considering the deceptions of such famous tricksters as Odysseus, David, the Vikings, Machiavelli, William the Conqueror, even Montaigne. It then considers the practices of some famous deceivers in contemporary business culture, such as Bernie Ebbers, Dennis Koslowski, and Kenneth Lay.

United States Detention Operations In Afghanistan And The Law Of Armed Conflict, Matthew C. Waxman

Faculty Scholarship

Looking back on US and coalition detention operations in Afghanistan to date, three key issues stand out: one substantive, one procedural and one policy. The substantive matter – what are the minimum baseline treatment standards required as a matter of international law? – has clarified significantly during the course of operations there, largely as a result of the US Supreme Court’s holding in Hamdan v. Rumsfeld. The procedural matter – what adjudicative processes does international law require for determining who may be detained? – eludes consensus and has become more controversial the longer the Afghan conflict continues. And the …

Guantánamo, Habeas Corpus, And Standards Of Proof: Viewing The Law Through Multiple Lenses, Matthew C. Waxman

Faculty Scholarship

The Supreme Court held in Boumediene v. Bush that Guantánamo detainees have a constitutional right to habeas corpus review of their detention, but it left to district courts in the first instance responsibility for working through the appropriate standard of proof and related evidentiary principles imposed on the government to justify continued detention. This article argues that embedded in seemingly straightforward judicial standard-setting with respect to proof and evidence are significant policy questions about competing risks and their distribution. How one approaches these questions depends on the lens through which one views the problem: through that of a courtroom concerned …

Asat-Isfaction: Customary International Law And The Regulation Of Anti-Satellite Weapons, David A. Koplow

Georgetown Law Faculty Publications and Other Works

This article asserts the thesis that customary international law (CIL), even in the absence of any new treaty, already provides a legal regime constraining the testing and use in combat of anti-satellite (ASAT) weapons. This argument, if validated, is important for both legal and public policy considerations: the world (especially, but not only, the United States) has grown increasingly dependent upon satellites for the performance of a wide array of commercial and military functions. At the same time, because of this growing reliance (and hence vulnerability), interest has surged in developing novel systems for attacking a potential enemy’s satellites – …

Human Dignity, Humiliation, And Torture, David Luban

Georgetown Law Faculty Publications and Other Works

Modern human rights instruments ground human rights in the concept of human dignity, without providing an underlying theory of human dignity. This paper examines the central importance of human dignity, understood as not humiliating people, in traditional Jewish ethics. It employs this conception of human dignity to examine and criticize U.S. use of humiliation tactics and torture in the interrogation of terrorism suspects.

Honduras: Coup D’Etat In Constitutional Clothing?, Douglass Cassel

Journal Articles

Legal confusion has clouded the recent de facto change of government in Honduras. Some of this arises from the passionate political debate over President Manuel Zelaya and his de facto removal. Without entering that debate, this analysis addresses only questions of international law and related questions of law.

Despite the condemnation of the coup d’état by the United Nations, the Inter-American Commission on Human Rights, and the OAS, and by many governments including the United States, and despite suspension of Honduras from receipt of U.S. and European aid, and from participation in the OAS, diplomatic efforts to return President Zelaya …

Professionalizing Moral Deference, Michael Hatfield

Articles

As I write this Essay, legal memoranda about torture, once again, are headline news. This Essay considers these memoranda. However, this Essay does not address the legality of torture or the legal limits of interrogation or even if lawyers who provide bad advice on these issues should be punished. Instead, this Essay uses what has come to light about the "torture memoranda" to consider broader issues about the contemporary state of becoming and being an American lawyer. With new memoranda being released, for the sake of convenience, this Essay refers only to the best-known example (at least as things currently …

Is Justice Relevant To The Law Of War, George P. Fletcher

Faculty Scholarship

Intellectual work on the law of war suffers from chronic isolation. The commentators on the Rome Statute are international lawyers who pay no attention to the work either of theoretical criminal lawyers or of the philosophers. The philosophers – Jeff McMahan as an outstanding example – ignore the legal details that dominate the books of the international lawyers. Criminal lawyers have much to contribute to the discussion of international law, but they seem not to be interested. Writers with limited audiences, living in closed worlds, are unaware of what they have to learn from those with a different take on …

Counterinsurgency, The War On Terror, And The Laws Of War, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

Since the wars in Afghanistan and Iraq, military strategists, historians, soldiers, and policymakers have made counterinsurgency's principles and paradoxes second nature, and they now expect that counterinsurgency operations will be the likely wars of the future. Yet despite counterinsurgency's ubiquity in military and policy circles, legal scholars have almost completely ignored it. This Article evaluates the laws of war in light of modern counterinsurgency strategy. It shows that the laws of war are premised on a kill-capture strategic foundation that does not apply in counterinsurgency, which follows a win-the-population strategy. The result is that the laws of war are disconnected …

Roles, Missions,And Equipment: Military Lessons From Experience In This Decade, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.