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What's International Law Got To Do With It? Transnational Law And The Intelligence Mission, James E. Baker

Michigan Journal of International Law

This Article describes a continuum of contemporary threats to U.S. national security, with a focus on nonstate terrorism. Part III addresses the role of intelligence and national security law, and in particular law addressed to process, in combating these threats. Good process advances the liberty and safety interests embodied in the concept of national security. Good process improves the quality of decision. It also enhances accountability, which in turn improves decision. Where good process is defined in law to include executive directive, it is better insulated from the immediate imperatives of secrecy and speed.

Ten Questions: Responses Of John Cary Sims, John Cary Sims

William Mitchell Law Review

No abstract provided.

Ten Questions: Responses Of Lisa Graves, Lisa Graves

William Mitchell Law Review

No abstract provided.

Is The Geneva Pow Convention "Quaint"?, R. J. Delahunty

William Mitchell Law Review

No abstract provided.

This Call May Be Monitored: Is Nsa Wiretapping Legal?

William Mitchell Law Review

No abstract provided.

What’S International Law Got To Do With It? Transnational Law And The Intelligence Mission, James E. Baker

Georgetown Law Faculty Publications and Other Works

The United States faces an immediate and continuous threat of terrorist attack using weapons of mass destruction, including nuclear weapons. The intelligence function and national security law, including international law--or more accurately transnational law--are central to addressing this threat. Indeed, international law is more relevant today in addressing this threat than it was before September 11. Part II of this article describes a continuum of contemporary threats to U.S. national security, with a focus on nonstate terrorism. Part III addresses the role of intelligence and national security law, and in particular law addressed to process, in combating these threats. Part …

Individual And State Responsibility For Intelligence Gathering, Dieter Fleck

Michigan Journal of International Law

It is the purpose of this contribution to examine relevant norms and principles for assessing acts of intelligence gathering under international law (Part I), evaluate legal problems of attribution of such acts (Part II), and, where governments commit wrongful acts, look into circumstances precluding their wrongfulness (Part III). Based on these considerations, legal consequences for criminal accountability (Part IV) and reparation (Part V) will be discussed. Finally, some conclusions may be drawn (Part VI).

A Paper Tiger With Bite: A Defense Of The War Powers Resolution, Michael B. Weiner

Vanderbilt Journal of Transnational Law

The War Powers Resolution (WPR) has led a beleaguered existence. Since its enactment in 1973, it has been labeled ineffectual and useless. This Note proves, however, that to review presidential unilateral uses of force since 1973 is to find a spirit of compliance with the WPR, as these uses of force have been characterized by their brevity and their lack of spilled U.S.blood. While minor departures from the WPR's black-letter requirements are conceded, none of these uses of force have developed into, or even resembled, Vietnam-esque quagmires. As a result, this Note contends that the WPR has had a positive …

The Brac Act, The State Militia Charade, And The Disregard Of Original Intent, Nathan Zezula

Pace Law Review

No abstract provided.

U.S. Counterterrorism Policy And Superpower Compliance With International Human Rights Norms, Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

This essay, originally prepared for a symposium on Guantanamo and international law, provides an brief overview of the elements that a comprehensive US counterterrorism should encompass. This overview is set against the question of how the US, as the world's superpower, ought to address its international law obligations. The essay then sets that question against the still-further question of what it means to be the superpower in a world that some believe is gradually evolving into a multipolar world, but which is currently a world of a conjoined US-international global system of security.

The essay defends the concept of counterterrorism …

Hamdan, Lebanon, And The Regulation Of Hostilities, Geoffrey S. Corn

Vanderbilt Journal of Transnational Law

For more than fifty years following the 1949 revision of the Geneva Conventions, legal scholars, government experts, and military practitioners understood the articles that defined when the protections of these treaties came into force--Common Articles 2 and 3--as the exclusive criteria which triggered the laws of war. From these two articles emerged an "either/or" law-applicability paradigm: inter-state, or international, armed conflicts triggered the full corpus of the laws of war, whereas intra-state, or internal, armed conflicts triggered the limited humanitarian protection reflected in the terms of Common Article 3. Because many military operations during the past two decades did not …

The War On Speech In The War On Terror: An Examination Of The Espionage Act Applied To Modern First Amendment Doctrine, Emily Posner

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Hamdan Confronts The Military Commissions Act Of 2006, George P. Fletcher

Faculty Scholarship

In 2006 the law of war experienced two major shock waves. The first was the decision of the Supreme Court in Hamdan, which represented the first major defeat of the President's plan, based on an executive order of November 2001, to use military tribunals against suspected international terrorists. The majority of the Court held the procedures used in the military tribunal against Hamdan violated common article three of the Geneva Conventions. A plurality offour, with the opinion written by Justice Stevens, based their decision as well on afar-reaching interpretation of the substantive law of war. They held that conspiracy …

The Law Of War And Its Pathologies, George P. Fletcher

Faculty Scholarship

War is with us more than ever. This is true despite the efforts of the United Nations Charter to ban the concept of war from the vocabulary of its member states. The preferred term is armed conflict. True, the Charter does refer to the Second World War, but apart from this concession to historically entrenched labels, the W word appears only once-when the Charter refers to ridding the world of the scourge of war. The Geneva Conventions, adopted a few years later, follow the same pattern. George Orwell could not be more amused. We change the vocabulary and think we …

Ten Questions: Responses Of John Cary Sims, John Cary Sims

McGeorge School of Law Scholarly Articles

No abstract provided.

Noble Human Rights Defender Or International Band-Aid? On Contemporary Humanitarianism, Kurt Mills

Human Rights & Human Welfare

A review of:

The Humanitarians: The International Committee of the Red Cross by David P. Forsythe. Cambridge: Cambridge University Press, 2005.

Making Sense Of A Senseless War, J. Peter Pham

Human Rights & Human Welfare

A review of:

A Dirty War in West Africa: The RUF and the Destruction of Sierra Leone by Lansana Gberie. Bloomington, IN: Indiana University Press, 2005.

and

Young Soldiers: Why They Choose to Fight by Rachel Brett and Irma Specht. Boulder, CO: Lynne Rienner Publishers, 2005.

A Survey Of Terrorism And Human Rights In Uganda, Arika Long

Human Rights & Human Welfare

Tragically, Uganda is a primary example of a country dominated by terror and human rights violations. In a 2006 interview with Integrated Regional Information Networks IRIN, the news department of the United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA), Under Secretary-General for Humanitarian Affairs Jan Egeland, called the conflict in Uganda “the worst form of terrorism in the world.” Defining terrorism as indiscriminate violence against civilians, he declares that nowhere in the world is there a more concentrated area where so many people are being terrorized, and have been for such a long period of time. According to …

Sudan: A Survey Of Terrorism And Human Rights, Arika Long

Human Rights & Human Welfare

Sudan is a primary example of a country dominated by terror and human rights violations. Upon the release of Amnesty International’s 2007 annual report, Secretary General Khan described the continuing conflict in Sudan's Darfur region as a “bleeding wound on the world’s conscience.” In the report, the authors declare that the world has been “impotent” in the face of major crises like Darfur. They state that policies linked to the “War on Terror” are creating a more polarized and dangerous world, with grave effects in Sudan. In addition to the terror and human rights violations permeating the North, frustration also …

Violations Of Human Rights During Military Operations In Chechnya, Federico Sperotto

Human Rights & Human Welfare

The case-law of the European Court of Human Rights concerning violations of human rights law during armed conflict has been extended after the first decisions on cases arose from violations, committed during the war in Chechnya between 1999 and 2000. In the words of the Court, at that time the situation called for exceptional measures, in order to regain control over the Republic and suppress an illegal armed insurgency. The Court has been ready to admit those measures, including the deployment of army units equipped with heavy combat weapons, military aviation and artillery, were necessary to counter the aggressiveness of …

A Primer On The Nonproliferation Regime For Maritime Security Operations Forces, Craig Allen

Articles

This article seeks to provide the reader with an overview of the weapons of mass destruction (WMD) nonproliferation regime relevant to marine security operations and to alert the reader to shortfalls in that regime that might frustrate at-sea efforts to interdict WMD shipments. It begins with a general description of the international approach to combating proliferation of WMD and then examines the individual regimes for nuclear weapons, chemical weapons (CW), biological-toxin weapons (BTW) and WMD delivery systems, such as missiles and unmanned aerial vehicles. It next traces the development of several resolutions by the United Nations Security Council that target …

Command Of The Commons Boasts: An Invitation To Lawfare?, Craig H. Allen

Articles

The first panel in this, the 2006 Naval War College, International Law Department conference on "Global Legal Challenges: Command of the Commons, Strategic Communications, and Natural Disasters," has been asked to offer a US perspective on current assertions regarding the US command of the commons. It is my privilege to moderate the discussion by a distinguished panel that includes Vice Admiral Lowell E. ("Jake") Jacoby, US Navy (retired) the immediate past director of the Defense Intelligence Agency; Vice Admiral John G. Morgan, Jr., US Navy, deputy chief of naval operations for plans and strategy (N3/N5); and Rear Admiral Joseph L. …

The Limits Of Intelligence In Maritime Counterproliferation Operations, Craig Allen

Articles

This article begins with an examination of the intelligence needs of those engaged in maritime counterproliferation efforts. It then turns to risk-management decision making under conditions of uncertainty, focusing on decisions at the operational level and exploring the question of whether decision strategies in the WMD context should seek to minimize false-negative or false-positive errors. It concludes that even vastly improved maritime intelligence will not obviate the need for national and operational commanders to make decisions under conditions of uncertainty and that such decisions should be made on the basis of established risk-assessment and management principles. At the same time, …

What We Owe The World Are Thoughtful War-Crimes Trials That Do Justice Without Unduly Jeopardizing Innocent Lives By Compromising Vital Intelligence Comment., Sherry M. Barnash

St. Mary's Law Journal

In Hamdan v. Rumsfeld, the United States Supreme Court held the military commission convened to try accused terrorist Salim Ahmen Hamdan was unlawful. The Court concluded the Government could not lawfully proceed using established commission rules because the commission differed from courts-martial and did not follow certain aspects of the Geneva Convention. One procedure the Court found troubling was a provision in the Military Commission Order No. 1 which allowed the exclusion of the defendant and his civilian counsel from certain proceedings. Yet, denial of access was nothing new, as three decades prior Congress enacted the Classified Information Procedures Act …

Essay: Special Operations Forces And War Crimes By Guerillas, Gregory R. Bart

ExpressO

No abstract provided.

Bin Laden's War, David A. Westbrook

Buffalo Law Review

The GWOT/Global Jihad is different from prior conflicts (including the ideological struggle of the Cold War), and these differences have important strategic consequences which are not reflected in current US policy. First, US strategy has proceeded on traditional, and inapposite, understandings of the politics that informs this war. Second, radical neofundamentalism is a new form of political organization, attuned to a globalized world, with a distinctive form of violence quite different from the violence organized by the bureaucratic apparatus of a modern professional military grounded in a nation state. Third, the politics of radical neofundamentalism has strategic consequences. On the …

Finding Effective Constraints On Executive Power: Interrogation, Detention, And Torture, Deborah N. Pearlstein

Indiana Law Journal

Symposium: War, Terrorism and Torture: Limits on Presidential Power in the 21st Century. Convened by the American Constitution Society for Law and Policy and the Indiana University School of Law- Bloomington, prominent legal scholars, human rights advocates and government lawyers gathered in Bloomington on October 7, 2005.

Panel Report: Beyond Article Iii Courts: Military Tribunals, Status Review Tribunals, And Immigration Courts, Robert M. Chesney

Cardozo Public Law, Policy & Ethics Journal

The article explores the tension between national security interests and procedural fairness in the use of secret evidence across non-Article III contexts, including military tribunals, Combatant Status Review Tribunals (CSRTs), and immigration courts. It examines the challenges of balancing government secrecy with individual rights, emphasizing the need for procedural safeguards to navigate this complex issue.

Boston And New York: The City Upon A Hill And Gotham, Shaun O'Connell

New England Journal of Public Policy

This article is about the author's experience with visiting New York during it's rebirth after 9/11. He speaks about the history of both cities and how they have each grown into their own to become places of future enterprise and cultural cohesiveness.

Unitariness And Myopia: The Executive Branch, Legal Process, And Torture, Cornelia Pillard

Indiana Law Journal

Symposium: War, Terrorism and Torture: Limits on Presidential Power in the 21st Century. Convened by the American Constitution Society for Law and Policy and the Indiana University School of Law- Bloomington, prominent legal scholars, human rights advocates and government lawyers gathered in Bloomington on October 7, 2005.