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- Mark A. Drumbl (7)
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Articles 1 - 30 of 38
Full-Text Articles in Law
On Clandestine Warfare, Robert E. Rodes
On Clandestine Warfare, Robert E. Rodes
Robert Rodes
Common moral judgments on many types of clandestine warfare, referred to by some as terrorism, seem to be more nuanced and less severe than our current legal judgments. This paper begins by offering a detailed typology of clandestine operations and measures to combat them, a few general reflections on the laws of war, and a critique of those laws as they now stand. It then proposes a substantial revision of the laws which govern clandestine warfare based on four basic principles of the laws and the morality of just war: the independence of jus in bello from the jus ad …
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.
Lawful Self-Defense To Terrorism, Mary Ellen O'Connell
Lawful Self-Defense To Terrorism, Mary Ellen O'Connell
Mary Ellen O'Connell
No abstract provided.
Enhancing The Status Of Non-State Actors Through A Global War On Terror?, Mary Ellen O'Connell
Enhancing The Status Of Non-State Actors Through A Global War On Terror?, Mary Ellen O'Connell
Mary Ellen O'Connell
Soon after September 11, President Bush declared a global war on terrorism and members of terrorist groups "combatants." These declarations are not only generally inconsistent with international law; they also reverse the trend regarding the legal status of international non-state actors. For decades, law-abiding non-state actors, such as international humanitarian aid organizations, enjoyed ever-expanding rights on the international plane. Professor Schachter observed how this trend came at the expense of the nation-state. He also predicted, however, that the nation-state would not fade away any time soon. And, by the late Twentieth Century, the trend toward enhanced status was noticeably slowing. …
Affirming The Ban On Harsh Interrogation, Mary Ellen O'Connell
Affirming The Ban On Harsh Interrogation, Mary Ellen O'Connell
Mary Ellen O'Connell
Beginning in 2002, lawyers for the Bush Administration began producing the now infamous legal memoranda on the subject of interrogation. The memoranda advise interrogators that they can torture people without fear of prosecution in connection with the so-called global war on terror. Much has been and will be written about the expedient and erroneous legal analysis of the memos. One issue at risk of being overlooked, however, because the memos emphasize torture, is that the United States must respect limits far short of torture in the conduct of interrogations. The United States may not use any form of coercion against …
When Is A War Not A War? The Myth Of The Global War On Terror, Mary Ellen O'Connell
When Is A War Not A War? The Myth Of The Global War On Terror, Mary Ellen O'Connell
Mary Ellen O'Connell
It is essential to correctly classify situations in the world as ones of war or peace: human lives depend on the distinction, but so do liberty, property, and the integrity of the natural environment. President Bush's war on terror finds war where suspected members of al Qaeda are found. By contrast, war under international law exists where hostilities are on-going. To the extent there is ambiguity, the United States should err on the side of pursuing terrorists within the peacetime criminal law enforcement paradigm, not a wartime one. Not only does the criminal law better protect important human rights and …
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.
Pretrial And Preventive Detention Of Suspected Terrorists: Options And Constraints Under International Law, Douglass Cassel
Pretrial And Preventive Detention Of Suspected Terrorists: Options And Constraints Under International Law, Douglass Cassel
Douglass Cassel
No abstract provided.
The Globalization Of Human Rights: Consciousness, Law And Reality, Douglass Cassel
The Globalization Of Human Rights: Consciousness, Law And Reality, Douglass Cassel
Douglass Cassel
No abstract provided.
The Constitutional Infirmity Of Warrantless Nsa Surveillance: The Abuse Of Presidential Power And The Injury To The Fourth Amendment, Robert M. Bloom, William J. Dunn
The Constitutional Infirmity Of Warrantless Nsa Surveillance: The Abuse Of Presidential Power And The Injury To The Fourth Amendment, Robert M. Bloom, William J. Dunn
Robert Bloom
In recent months, there have been many revelations about the tactics used by the Bush Administration to prosecute their war on terrorism. These stories involve the exploitation of technologies that allow the government, with the cooperation of phone companies and financial institutions, to access phone and financial records. This paper focuses on the revelation and widespread criticism of the Bush Administration’s operation of a warrantless electronic surveillance program to monitor international phone calls and emails that originate or terminate with a United States party. The powerful and secret National Security Agency heads the program and leverages its significant intelligence collection …
Pre-Crime Restraints: The Explosion Of Targeted, Non-Custodial Prevention, Jennifer Daskal
Pre-Crime Restraints: The Explosion Of Targeted, Non-Custodial Prevention, Jennifer Daskal
Jennifer Daskal
This Article exposes the ways in which non-custodial, pre-crime restraints have proliferated over the past decade, focusing in particular on three notable examples – terrorism-related financial sanctions, the No Fly List, and the array of residential, employment, and related restrictions imposed on sex offenders. Because such restraints do not involve physical incapacitation, they are rarely deemed to infringe core liberty interests. Because they are preventive, not punitive, none of the criminal law procedural protections apply. They have exploded largely unchecked – subject to little more than bare rationality review and negligible procedural protections – and without any coherent theory as …
U.S. Judicial Independence: Victim In The “War On Terror”, Wayne Mccormack
U.S. Judicial Independence: Victim In The “War On Terror”, Wayne Mccormack
Wayne McCormack
One of the principal victims in the U.S. so-called "war on terror" has been the independence of the U.S. Judiciary. Time and again, challenges to assertedly illegal conduct on the part of government officials have been turned aside without addressing the merits, either because of overt deference to the Government or because of special doctrines such as state secrets and standing requirements. This paper catalogs the principal cases first by the nature of the government action challenged and then by the special doctrines invoked. The U.S. judiciary has virtually relinquished its valuable role of judicial review. In the face of …
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 …
Kiobel, Extraterritoriality, And The "Global War On Terrorism", Craig Martin
Kiobel, Extraterritoriality, And The "Global War On Terrorism", Craig Martin
Craig Martin
For the purpose of exploring the issues of extraterritoriality raised in Kiobel v. Royal Dutch Petroleum Co., this project sought to examine how the federal courts have considered extraterritoriality in cases arising in the so-called “global war on terror” (GWOT). The inquiry leads to some new and arguably important observations about extraterritoriality in the GWOT policies and related jurisprudence. The plaintiffs in Kiobel claimed, under the Alien Tort Statute (ATS), that the defendant corporations were liable for complicity in Nigeria’s conduct of indefinite detention, torture, and extrajudicial killing. The U.S. Supreme Court departed from the issue of corporate liability under …
Terrorism And National Security Intelligence Laws: Assessing Australian Reforms, G. L. Rose, D. Nestorovska
Terrorism And National Security Intelligence Laws: Assessing Australian Reforms, G. L. Rose, D. Nestorovska
Professor Gregory Rose
The Australian legal definition of terrorism and a brief history of terrorism in Australia set the context for national security intelligence laws. Recent national reforms are surveyed and critically examined here. It is concluded that they do not duplicate other powers and are subject to respectable, although not impeccable, safeguards. Some provisions need to be clarified to delimit their scope and others could be hampered in operation by the uncertainty of constitutionally implied limits.
Towards An Asean Counter-Terrorism Treaty, G. L. Rose, D. Nestorovska
Towards An Asean Counter-Terrorism Treaty, G. L. Rose, D. Nestorovska
Professor Gregory Rose
The benefits for Association of Southeast Asian Nations (ASEAN) members of a regional treaty to combat terrorism include improved coordination in mutual legal assistance and harmonisation of best practice legal approaches. The conceptual framework for a common definition of terrorism is set out in this paper. Precedent regional and multilateral treaties are analysed into legal formulae and their components, such as obligations to indict or to extradite, to provide mutual legal assistance, and to build regional implementation capacity, are assessed as potential models for inclusion in an ASEAN regional treaty. The paper concludes by considering ASEAN progress in adopting cooperative …
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?"
Report Of The Independent Expert On The Protection Of Human Rights And Fundamental Freedoms While Countering Terrorism, Robert K. Goldman
Report Of The Independent Expert On The Protection Of Human Rights And Fundamental Freedoms While Countering Terrorism, Robert K. Goldman
Robert K. Goldman
The Commission on Human Rights, in resolution 2004/87, decided to designate, from within existing resources, for a period of one year, an independent expert to assist the High Commissioner for Human Rights in the fulfillment of the mandate described in the resolution and, “taking fully into account the study requested in General Assembly resolution 58/187, as well as the discussions in the Assembly and the views of States thereon, to submit a report, through the High Commissioner, to the Commission at its sixty-first session on ways and means of strengthening the promotion and protection of human rights and fundamental freedoms …
Self-Defence In An Age Of Terrorism: Introductory Remarks, Mark A. Drumbl
Self-Defence In An Age Of Terrorism: Introductory Remarks, Mark A. Drumbl
Mark A. Drumbl
None available.
Terrorism And Associations, Ashutosh A. Bhagwat
Terrorism And Associations, Ashutosh A. Bhagwat
Ashutosh Bhagwat
The domestic manifestation of the War on Terror has produced the most difficult and sustained set of controversies regarding the limits on First Amendment protections for political speech and association since the anti-Communist crusades of the Red Scare and McCarthy eras. An examination of the types of domestic terrorism prosecutions that have become common since the September 11 attacks reveals continuing and unresolved conflicts between national security needs and traditional protections for speech and (especially) associational freedoms. Yet the courts have barely begun to acknowledge, much less address, these serious issues. In the Supreme Court’s only sustained engagement with these …
Reclassifying "Terrorists" As Victims: Integrating Terrorism Analysis Into The Particular Social Group Framework Of Asylum, Emily Naser-Hall
Reclassifying "Terrorists" As Victims: Integrating Terrorism Analysis Into The Particular Social Group Framework Of Asylum, Emily Naser-Hall
Emily Naser-Hall
After the September 11th terrorist attacks at the hands of al-Qaeda operatives who slipped through the cracks of the US immigration system, immigration and asylum law became increasingly focused on ensuring that potential terrorists are not allowed into the United States. The USA PATRIOT Act and its subsequent legislation created what has become an unyielding bar to admission for any individual who is a member of a terrorist organization or who has committed terrorist activities. While the terrorism bar developed in response to real or perceived threats to US national security and has recently regained public light with the trial …
Accountability For System Criminality, Mark A. Drumbl
'Lesser Evils' In The War On Terrorism, Mark A. Drumbl
'Lesser Evils' In The War On Terrorism, Mark A. Drumbl
Mark A. Drumbl
No abstract provided.
The Expressive Value Of Prosecuting And Punishing Terrorists: Hamdan, The Geneva Conventions, And International Criminal Law, Mark A. Drumbl
The Expressive Value Of Prosecuting And Punishing Terrorists: Hamdan, The Geneva Conventions, And International Criminal Law, Mark A. Drumbl
Mark A. Drumbl
In Hamdan v. Rumsfeld, the United States Supreme Court ruled that the military commissions that had been proposed by the Executive to prosecute a small number of detainees captured in the 'war on terror' could not proceed. In response to the Hamdan decision, Congress enacted a new military commission structure in the 2006 Military Commissions Act (MCA), which President Bush signed on October 17, 2006. The MCA establishes military commissions for aliens classified as unlawful enemy combatants. It lists the crimes chargeable by such commissions. The MCA also amends domestic legislation - for example, the War Crimes Act - initially …
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 …