National Security Law Commons^™

Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora

University of Michigan Journal of Law Reform

The current "war on terror" provides the Bush administration with a unique opportunity to both establish clear guidelines for the interrogation of detainees and to make a forceful statement about American values. How the government chooses to act can promote either an ethical commitment to the norms of civil society, or an attitude analogous to Toby Keith's "American Way," where Keith sings that "you'll be sorry that you messed with the USofA, 'Cuz we'll put a boot in your ass, It's the American Way."

Weakening The Bill Of Rights: A Victory For Terrorism, Stephen Reinhardt

Michigan Law Review

What is most remarkable about Richard Posner's latest book-and he has written many-is that he argues that we should repose full confidence in the executive branch to handle the most sensitive constitutional issues of our time without once mentioning the flagrant breaches of law and critical falsehoods with which President Bush and his administration have deluged the public since 9/11. This only seven years after he composed a lengthy tome regarding President Clinton's impeachment in which he appropriately, if harshly, condemned the president for his unethical and illegal conduct, principally his deliberate lies and purposeful lack of candor with the …

Born In The U.S.A.? Rethinking Birthright Citizenship In The Wake Of 9/11, John C. Eastman

University of Richmond Law Review

No abstract provided.

Torture, With Apologies, Thomas P. Crocker

Faculty Publications

No abstract provided.

When Congress Passes An Intentionally Unconstitutional Law: The Military Commissions Act Of 2006, Paul Diller

Paul Diller

No abstract provided.

Extraterritorial Reach Of The Great Writ At Common Law: The Constitution Guarantees The Guantanamo Bay Detainees A Right To Habeas Corpus, Abigail S. Kurland

Florida A & M University Law Review

No abstract provided.

The Twenty Year Test: Principles For An Enduring Counterterrorism Legal Architecture, James E. Baker

Georgetown Law Faculty Publications and Other Works

The United States faces three enduring terrorism-related threats. First, there is the realistic prospect of additional attacks in the United States including attacks using weapons of mass destruction (“WMD”). Second, in responding to this threat, we may undermine the freedoms that enrich our lives, the tolerance that marks our society, and the democratic values that define our government. Third, if we are too focused on terrorism, we risk losing sight of this century’s other certain threats as well as the capacity to respond to them, including the state proliferation of nuclear weapons, nation-state rivalry, pandemic disease, oil dependency, and environmental …

Who Is A Terrorist - Drawing The Line Between Criminal Defendants And Military Enemies, Benjamin Priester

Journal Publications

The threat of terrorist attacks by al Qaeda and other transnational terrorist organizations is a constant topic of public discourse in the United States. Despite its prominence, the nature of that threat is notoriously difficult to define. On the one hand, terrorists might be compared to other kinds of organized, dangerous criminals who should be prosecuted and punished using the federal criminal law. On the other hand, terrorists might be compared to enemy soldiers engaged in warfare against the United States. There are problems with either approach, however, because the threat posed by al Qaeda and other transnational terrorist organizations …

A Running Start: Getting “Law Ready” During A Presidential Transition, James E. Baker

Georgetown Law Faculty Publications and Other Works

We are headed for our first wartime Presidential transition in forty years. The good news is that this has prompted uncommon attention to the process of transition. The bad news is that transitions are difficult in the best of circumstances; forewarned does not always equal prepared. The United States handles transitions well on a strategic level. Strategic continuity is found in the Constitution. Transition is also part of the rhythm of government. The intelligence community, for example, has a sound tradition of briefing candidates and Presidents-elect. However, there is tactical vulnerability. An outgoing administration may hesitate to initiate all but …

The Chains Of The Constitution And Legal Process In The Library: A Post-Usa Patriot Reauthorization Act Assessment, Susan Nevelow Mart

Publications

Since the Patriot Act was passed in 2001, controversy has raged over nearly every provision. The controversy has been particularly intense over provisions that affect the patrons of libraries. This article follows those Patriot Act provisions that affect libraries, and reviews how they have been interpreted, how the Patriot Reauthorization Acts have changed them, and what government audits and court affidavits reveal about the use and misuse of the Patriot Act. The efforts of librarians and others opposed to the Patriot Act have had an effect, both legislatively and judicially, in changing and challenging the Patriot Act. Because libraries are …

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 …

Tinkering With Torture In The Aftermath Of Hamdan: Testing The Relationship Between Internationalism And Constitutionalism, Catherine Powell

Georgetown Law Faculty Publications and Other Works

Bridging international and constitutional law scholarship, the author examines the question of torture in light of democratic values. The focus in this article is on the international prohibition on torture as this norm was addressed through the political process in the aftermath of Hamdan v. Rumsfeld. Responding to charges that the international torture prohibition--and international law generally--poses irreconcilable challenges for democracy and our constitutional framework, the author contends that by promoting respect for fundamental rights and for minorities and outsiders, international law actually facilitates a broad conception of democracy and constitutionalism. She takes on the question of torture within …

Conflicts Between The Commander In Chief And Congress: Concurrent Power Over The Conduct Of War, Jules Lobel

Articles

The Bush Administration argues that the Commander in Chief has exclusive power to decide what military tactics to use to defeat a wartime enemy. The Administration's constitutional position that Congress may not permissibly interfere with these Executive Commander in Chief powers has been heavily criticized, particularly with respect to the Executive power to interrogate prisoners or engage in warrantless wiretapping on American citizens and its argument that Congress cannot limit the Iraq war. Yet, many critics concur in the Administration's starting point - that the President has exclusive authority over battlefield operations.

This article challenges that assumption. It argues that …

Panel: Restrictions On Freedom Of Association Through Material Support Prohibitions And Visa Denials, David Cole

Georgetown Law Faculty Publications and Other Works

In the 1950s, we were afraid of communism. We were afraid, in particular, of the Soviet Union, the world's second greatest superpower, which was armed with masses of nuclear warheads aimed at all our largest cities. As a result, we fought the Cold War, engaged in espionage, proxy wars, and an arms race. We also took aggressive preventive measures at home. The principal preventive measure of that period was guilt by association. We made it a crime to be a member of the Communist Party, and we created a whole administrative scheme to implement and enforce this notion of guilt …