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Full-Text Articles in Law
Is Immigration Law National Security Law?, Shoba S. Wadhia
Is Immigration Law National Security Law?, Shoba S. Wadhia
Shoba Sivaprasad Wadhia
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 …
Patriotism, Nationalism, And The War On Terror: A Mild Plea In Avoidance, Winston P. Nagan, Craig Hammer
Patriotism, Nationalism, And The War On Terror: A Mild Plea In Avoidance, Winston P. Nagan, Craig Hammer
Winston P Nagan
Professor Viet Dinh, a major drafter of and architectural influence upon the USA PATRIOT Act, provides an indirect scholarly justification for the far-reaching powers of the act in his article, Nationalism in the Age of Terror. Part II of this Commentary begins by exploring the ostensible underpinnings of Dinh's article by examining his understanding of nationalism. Part III explains why crony nationalism is not the best defense against global terrorism. Part IV then analyzes some significant United States foreign policy undertakings that have arguably negatively affected United States national security. Finally, in Part V we conclude by gleaning lessons from …
The State Secrets Privilege In The Post-9/11 Era, Steven D. Schwinn
The State Secrets Privilege In The Post-9/11 Era, Steven D. Schwinn
Steven D. Schwinn
No abstract provided.
Decoupling 'Terrorist' From 'Immigrant': An Enhanced Role For The Federal Courts Post 9/11, Victor C. Romero
Decoupling 'Terrorist' From 'Immigrant': An Enhanced Role For The Federal Courts Post 9/11, Victor C. Romero
Victor C. Romero
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 targeting …
Noncitizen Students And Immigration Policy Post-9/11, Victor Romero
Noncitizen Students And Immigration Policy Post-9/11, Victor Romero
Victor C. Romero
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
To Kill Or Capture Suspects In The Global War On Terror, Mary Ellen O'Connell
Mary Ellen O'Connell
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.
The Choice Of Law Against Terrorism, Mary Ellen O'Connell
The Choice Of Law Against Terrorism, Mary Ellen O'Connell
Mary Ellen O'Connell
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.
The Legal Case Against The Global War On Terror, Mary Ellen O'Connell
The Legal Case Against The Global War On Terror, Mary Ellen O'Connell
Mary Ellen O'Connell
No abstract provided.
The Voice Of Reason—Why Recent Judicial Interpretations Of The Antiterrorism And Effective Death Penalty Act’S Restrictions On Habeas Corpus Are Wrong, Judith L. Ritter
The Voice Of Reason—Why Recent Judicial Interpretations Of The Antiterrorism And Effective Death Penalty Act’S Restrictions On Habeas Corpus Are Wrong, Judith L. Ritter
Judith L Ritter
By filing a petition for a federal writ of habeas corpus, a prisoner initiates a legal proceeding collateral to the direct appeals process. Federal statutes set forth the procedure and parameters of habeas corpus review. The Antiterrorism and Effective Death Penalty Act (AEDPA) first signed into law by President Clinton in 1996, included significant cut-backs in the availability of federal writs of habeas corpus. This was by congressional design. Yet, despite the dire predictions, for most of the first decade of AEDPA’s reign, the door to habeas relief remained open. More recently, however, the Supreme Court reinterpreted a key portion …
Defending Human Rights In The "War" Against Terror, Douglass Cassel
Defending Human Rights In The "War" Against Terror, Douglass Cassel
Douglass Cassel
No abstract provided.
Mission Creep In National Security Law, Fletcher N. Baldwin Jr., Daniel R. Koslosky
Mission Creep In National Security Law, Fletcher N. Baldwin Jr., Daniel R. Koslosky
Fletcher N. Baldwin
Many anti-terrorism measures are enacted with broad public support. There is often a general willingness on the part of the public to accept greater civil liberties deprivations in the face of a specific threat, or otherwise in times of general crisis, than would otherwise be the case. Sweeping anti-terrorism legislation is frequently crafted in reaction to the presence, or perceived presence, of immense, imminent danger. The medium and long-term consequences of the legislation may not fully be comprehended when political leaders and policymakers take swift action in the face strong public pressure in light of a recent terrorist attack or …
Due Process In American Military Tribunals After September 11, 2001, Gary Shaw
Due Process In American Military Tribunals After September 11, 2001, Gary Shaw
Gary M. Shaw
The Authorization for Use of Military Force ("AUMF") provides broad powers for a president after September 11, 2001. President Bush, under the AUMF, claimed he had the power to hold "enemy combatants" without due process. This gave rise to two questions that the article addresses: "Could they be held indefinitely without charges or proceedings being initiated? If proceedings had to be initiated, what process was due to the defendants?"
Don’T Expand The War On Terror, Jennifer Daskal, Stephen Vladeck
Don’T Expand The War On Terror, Jennifer Daskal, Stephen Vladeck
Jennifer Daskal
Congress should reject open-ended war and embrace a return to peace. Instead of expanding the Authorization for the Use of Military Force, Congress should consider repealing it once the withdrawal of our combat troops from Afghanistan has been completed. Law enforcement, intelligence gathering and other nonmilitary counterterrorism tools ought to be at the forefront of our fight against terrorism.
Victimhood In Our Neighborhood: Terrorist Crime, Taliban Guilt, And The Asymmetries Of The International Legal Order, Mark A. Drumbl
Victimhood In Our Neighborhood: Terrorist Crime, Taliban Guilt, And The Asymmetries Of The International Legal Order, Mark A. Drumbl
Mark A. Drumbl
This Article posits that the September 11 attacks constitute nonisolated warlike attacks undertaken against a sovereign state by individuals from other states operating through a non-state actor with some command and political structure. This means that the attacks contain elements common to both armed attacks and criminal attacks. The international community largely has characterized the attacks as armed attacks. This characterization evokes a legal basis for the use of force initiated by the United States and United Kingdom against Afghanistan on October 7, 2001. Notwithstanding the successes of the military campaign and the need for containment of terrorist activity, this …
Are You A Terrorist Or An American?:An Analysis Of Immigration Lawpost 9/11: Introduction, Mark A. Drumbl
Are You A Terrorist Or An American?:An Analysis Of Immigration Lawpost 9/11: Introduction, Mark A. Drumbl
Mark A. Drumbl
No abstract provided.
Guantanamo, Rasul, And The Twilight Of Law, Mark A. Drumbl
Guantanamo, Rasul, And The Twilight Of Law, Mark A. Drumbl
Mark A. Drumbl
In Rasul v. Bush, the Supreme Court held that U.S. district courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay. In this paper, I explore what has happened since the Rasul decision: most notably, the introduction of combatant status review tribunals as a response to Rasul and the challenges that have been filed thereto and adjudicated in the federal courts (Khalid, In re Guantanamo Detainee Cases); the charges brought against certain detainees by military commissions and challenges to these commissions filed in the …
Negotiating With ‘Bulimic Man’: The (F)Utility Of Engaging Iran, Amit Chhabra
Negotiating With ‘Bulimic Man’: The (F)Utility Of Engaging Iran, Amit Chhabra
Amit Chhabra
In the aftermath of the World Trade Center bombings of September 11, 2001 (“9/11”), the American psyche has been inordinately consumed with the notion of terror and global jihad against Western culture. Even before these dramatic events, though, our unique sense of humor has traditionally emboldened us to enjoy a good scare. When terror strikes in the real world, then, we are readily at attention. Increasingly since the advent of the television, this aspect of our collective psychology has been commoditized by Hollywood and politicized at election time. The fact that Halloween traditionally falls less than a week before Election …
A Dark Descent Into Reality: Making The Case For An Objective Definition Of Torture, Michael W. Lewis
A Dark Descent Into Reality: Making The Case For An Objective Definition Of Torture, Michael W. Lewis
Michael W. Lewis
The definition of torture is broken. The malleability of the term “severe pain or suffering” at the heart of the definition has created a situation in which the world agrees on the words but cannot agree on their meaning. The “I know it when I see it” nature of the discussion of torture makes it clear that the definition is largely left to the eye of the beholder. This is particularly problematic when international law’s reliance on self-enforcement is considered. After discussing current common misconceptions about intelligence gathering and coercion that are common to all sides of the torture debate, …
Indefinite Material Witness Detention Without Probable Cause: Thinking Outside The Fourth Amendment, Michael Greenberger
Indefinite Material Witness Detention Without Probable Cause: Thinking Outside The Fourth Amendment, Michael Greenberger
Michael Greenberger
A constitutional issue recently addressed by the United States Court of Appeals for the Second Circuit in United States v. Awadallah, 349 F.3d 42 (2003), has not received the widespread attention of high-profile litigation concerning the Justice Department's other controversial counter-terrorism policies. It is equally important. The issue arises out of Attorney General Ashcroft's announcement shortly after the terrorist attacks of September 11, 2001 that the aggressive detention of material witnesses [was] vital to preventing, disrupting or delaying new attacks. Since that time, the Department of Justice has used the federal material witness statute (18 U.S.C. Section 3144) to arrest …
Us National Security, Intelligence And Democracy: From The Church Committee To The War On Terror, Russell Miller
Us National Security, Intelligence And Democracy: From The Church Committee To The War On Terror, Russell Miller
Russell A. Miller
No abstract provided.