National Security Law Commons^™

The War On Terror & Vigilante Federalism, Maryam Jamshidi

Publications

No abstract provided.

Excavating The Forgotten Suspension Clause, Helen Norton

Publications

No abstract provided.

Prosecuting The War On Terror In The Trump Administration: The Trump Doctrine: Is There Really A New Sheriff In Town, Jeffrey F. Addicott

Faculty Articles

After one full year in office, it is time to examine the actions taken by the Trump Administration in light of its legal and policy structures for dealing with the War on Terror and the companion problem of radical Islamic terrorism-both the domestic and international threat. In this context, two general concepts bear examination. First, is there a significant change in the Trump Administration from the policies of the Bush and Obama Administrations vis a vis prosecuting the War on Terror and dealing with domestic jihadists? Second, has the Trump strategic vision and attendant actions contributed in any significant way …

Contrasting Perspectives And Preemptive Strike: The United States, France, And The War On Terror, Sophie Clavier

Maine Law Review

A few years ago, Samuel P. Huntington's article in Foreign Affairs, "The Clash of Civilizations?" described a "West vs. the Rest" conflict leading to the assumption of an essentially unified Western civilization settling "[g]lobal political and security issues ... effectively ... by a directorate of the United States, Britain and France" and centered around common core values "using international institutions, military power and economic resources to run the world in ways that will . . . protect Western interests . . . .” Against the West, the specter of disorder and fundamentalism was looming and would precipitate conflicts. This widely …

A Human Rights Perspective To Global Battlefield Detention: Time To Reconsider Indefinite Detention, Yuval Shany

International Law Studies

This article discusses one principal challenge to detention without trial of suspected international terrorists—the international human rights law (IHRL) norm requiring the introduction of an upper limit on the duration of security detention in order to render it not indefinite in length. Part One of this article describes the “hardline” position on security detention, adopted by the United States in the immediate aftermath of the 9/11 terror attacks (followed, with certain variations, by other countries, including the United Kingdom and the State of Israel), according to which international terrorism suspects can be deprived of their liberty without trial for the …

Measuring The Effectiveness Of America's War On Terror, Erik W. Goepner

The US Army War College Quarterly: Parameters

No abstract provided.

Eliminating The No Number, No List Response; Keeping The Cia Within The Scope Of The Law Amidst America's Global War On Terror, Joseph Meissner

Nevada Law Journal

No abstract provided.

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 …

Repatriate . . . Then Compensate: Why The United States Owes Reparation Payments To Former Guantánamo Detainees, Cameron Bell

Loyola of Los Angeles Law Review

In late 2001, U.S. government officials chose Guantánamo Bay, Cuba, as the site to house the “war on terror” detainees. Since then, 779 individuals have been detained at Guantánamo. Many of the detainees have endured years of detention, cruel and degrading treatment, and for some, torture—conduct that violates well-established prohibitions against torture and inhumane treatment under both general international law and the law of war. Under these bodies of law, the United States is required to make reparation—through restitution, compensation, and satisfaction—for acts that violate its international obligations. But the United States has not offered financial compensation to any Guantánamo …

Qualified Immunity, Constitutional Stagnation, And The Global War On Terror, Sarah L. Lochner

Northwestern University Law Review

No abstract provided.

Special Administrative Measures: An Example Of Counterterror Excesses And Their Roots In U.S. Criminal Justice, Francesca Laguardia

Department of Justice Studies Faculty Scholarship and Creative Works

This article examines the creation and implementation of pretrial Special Administrative Measures [SAMs], a version of pretrial solitary confinement now used most often to confine terror suspects in the federal criminal justice system. Through an in-depth archival study, this article brings attention to the importance of 20th-century criminal justice trends to the 21st-century response to the threat of terrorism, including an increasingly preventive focus and decreasing judicial checks on executive action. The findings suggest that practices believed to be excessive responses to the threat of terrorism are in fact a natural outgrowth of late modern criminal justice.

Duck-Rabbits And Drones: Legal Indeterminacy In The War On Terror, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

In the days and weeks immediately following the 9/11 attacks, “the law” offered little to lawyers or policy-makers looking for guidance. Indeed, for many the events of 9/11 became the legal equivalent of a Rorschach test: depending on the observer, the 9/11 attacks were variously construed as criminal acts, acts of war, or something in between, thus fitting into (or triggering) any of several radically different legal regimes.

Divergent interpretations of the law are common, of course. Legal rules often contain an element of ambiguity, and the “facts” to which law must be applied can frequently be construed in multiple …

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

Mary Ellen O'Connell

No abstract provided.

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

Douglass Cassel

No abstract provided.

The United States Supreme Court Rulings Of Detention On "Enemy Combatants" - Partial Vindication Of The Rule Of Law, Douglass Cassel

Douglass Cassel

No abstract provided.

Legal Affairs: Dreyfus, Guantánamo, And The Foundation Of The Rule Of Law, David Cole

Touro Law Review

Analogous to the Dreyfus affair, America's reaction to the events of September 11, 2001, subverted the rule of law to impose penalties on those it viewed as a threat. There are lessons to be learned from both the Dreyfus affair and America's reaction to September 11, 2001.

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.

Are You A Terrorist Or An American?:An Analysis Of Immigration Lawpost 9/11: Introduction, Mark A. Drumbl

Mark A. Drumbl

No abstract provided.

The Muted Rise Of The Silent Witness Rule In National Security Litigation: The Eastern District Of Virginia's Answer To The Fight Over Classified Information At Trial, Jonathan M. Lamb

Pepperdine Law Review

The state secrets problem is emblematic of a judicial issue which is not confined to the civil cases in which the privilege is asserted - the tension between the government's interest in protecting classified information and society's interest in justice by resolution on the merits. The United States must be allowed to prosecute terrorists, conspirators, and enemies by using classified information as evidence; but how may the government act as a civil defendant without invoking the state secrets privilege to dismiss actions before trial (or pre-discovery)? The answer might be a little known evidentiary doctrine called the silent witness rule. …

A Sea Change In Security: How The ‘War On Terror’ Strengthened Human Rights, Michael Galchinsky

English Faculty Publications

In many ways the Bush administration's "war on terror" weakened states' respect for their human rights obligations, and the UN Security Council's initial response to 9/11 seemed to follow the Bush administration's lead. In keeping with its historical lack of engagement with human rights questions, the SC in 2001-2003 did little to ensure that the counter-terrorism measures it demanded of states would take their obligations under human rights and humanitarian law into account. However, starting in 2002, a backlash against the perceived excesses wrought by the SC’s counter-terrorism measures gained momentum. Other UN bodies, as well as NGOs, regional intergovernmental …

Carlos Figueroa On State Power And Democracy: Before And During The Presidency Of George W. Bush. By Andrew Kolin. New York, Ny: Palgrave Macmillan, 2011. 251pp., Carlos Figueroa

Human Rights & Human Welfare

A review of:

State Power and Democracy: Before and During the Presidency of George W. Bush. By Andrew Kolin. New York, NY: Palgrave Macmillan, 2011. 251pp.

Introduction: Targeting In An Asymmetrical World, D. A. Jeremy Telman

Law Faculty Publications

This is the introduction to a collection of articles to be published in the Valparaiso University Law Review. The articles address the challenges presented by non-traditional warfare and non-traditional combatants in the contexts of the War on Terror and the trend toward multilateral and humanitarian interventions. Two of the contributions, those of Jonathan Hafetz and David Frakt, detail the hybrid model, part criminal law, part law of war, that the United States developed for addressing the status of detainees in the War on Terror. Two of the contributions, those of Rachel VanLandingham and Iain Pedden, propose international models for addressing …

Looking Forward, Backward, Or Just Away?, Chandra Lekha Sriram

Human Rights & Human Welfare

The declassification and leaking of the so-called “torture memos” only supplements much which was already publicly well-known, but has offered a fresh opportunity to frankly debate American values, in particular its commitment to the rule of law, its own constitution, and international human rights and humanitarian law obligations to which it has committed itself, and which the Supreme Court has confirmed are part of domestic law. It is a shame, therefore, that the debate has been so stunted, diverted by the red herring of Dick Cheney’s rantings, and the apparent willingness of a segment of the population to accept, first, …

Let Us Not Become The Evil We Deplore, Rebecca Otis

Human Rights & Human Welfare

On 14 September 2001, Representative Barbara Lee (CA-D) voted against the House bill that granted President Bush the authority to use force in response to the terrorist attacks on the World Trade Center and Pentagon. As the sole person to vote against the bill (by a margin of 420-1), Lee was roundly vilified as a “traitor,” a “coward, and even a “communist.” Later that day, as the only voice of dissent on the House floor, Lee delivered a speech to justify her position. Famously, she said to the elected representatives of our country, “As we act, let us not become …

Response To Mark Danner’S “The Red Cross’ Torture Report: What It Means”, Charli Carpenter

Human Rights & Human Welfare

Danner’s NY Review of Books treatise on torture calls our attention to many significant issues, but in his key argument he is critically wrong.

June Roundtable: Introduction

Human Rights & Human Welfare

An annotation of:

“The Red Cross Torture Report: What It Means.” by Mark Danner. The New York Review of Books. April 30, 2009.

Righting Past, Present And Future Wrongs, Rhona Smith

Human Rights & Human Welfare

Three legal issues are raised by the centerpiece of this month’s Roundtable: Does the legal definition of torture include “enhanced interrogation techniques”? What are the legal responsibilities of a State when torture is committed by its agents? and What should the State do now to prevent future violations of human rights? In other words, one must characterize the actions of the past, ameliorate the damage in the present, and prevent a recurrence in the future.

Torture—And Our Broader Understanding Of Human Rights, Mark Gibney

Human Rights & Human Welfare

Like most other human rights scholars, I am appalled at the idea that those people in the Bush White House who designed the administration’s policy on torture (but calling it something else) will in all likelihood go unpunished. In my view, the law is clear on this matter: those who directed and/or carried out torture must be held accountable for their actions. However, rather than focusing on the issue of accountability, I will use the issue of torture to make a broader point about how we have come to conceptualize the extent and scope of a state’s human rights obligations.

The Moral High Ground In An Age Of Vulnerability, Tyler Moselle

Human Rights & Human Welfare

Mark Danner’s New York Review of Books piece on torture in conjunction with John Nichols’ comment on the Bush administration, outline moral, legal and political problems related to the global war on terrorism and the ascendancy of the American imperial presidency. Most people seem to be repulsed by the idea of torture but are not morally committed enough or fully dedicated to prevent it from being employed to defend their way of life. Torture is a policy decision predicated on fear, self-defense, and vulnerability in an age of globalized insurgency: one way to respond is to take the moral high …