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The Priority Of Morality: The Emergency Constitution's Blind Spot, David Cole
The Priority Of Morality: The Emergency Constitution's Blind Spot, David Cole
Georgetown Law Faculty Publications and Other Works
Three aspects of Bruce Ackerman’s thesis, which is a proposal to legitimate the practice of suspicionless preventive detention during emergencies, are discussed in this essay—its premises, its efficacy, and its morality. Part I critiques three of Ackerman’s premises—his underestimation of courts and overestimation of legislatures as guardians of liberty, his misguided belief that the supermajoritarian escalator provides a one-size-fits-all solution to the conundrum of emergency powers, and his contention that the short-lived character of emergencies makes it sensible to cede to a minority of our popular representatives control over critically important and largely unpredictable decisions concerning the appropriate duration of …
Executive And Judicial Overreaction In The Guantanamo Cases, Neal K. Katyal
Executive And Judicial Overreaction In The Guantanamo Cases, Neal K. Katyal
Georgetown Law Faculty Publications and Other Works
The U.S. Supreme Court in Rasul v. Bush and Al-Odah v. United States held that detainees at Guantanamo Bay may challenge their detentions via writs of habeas corpus. Justice Stevens' majority opinion held that "the federal courts have jurisdiction to determine the legality of the Executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing." This holding is potentially unbounded, perhaps enabling someone detained at Kandahar or even Diego Garcia to challenge his detention via the great writ. It appears to be a striking break from the 1950 Johnson v. Eisentrager decision, which strongly intimated that …
War Everywhere: Rights, National Security Law, And The Law Of Armed Conflict In The Age Of Terror, Rosa Ehrenreich Brooks
War Everywhere: Rights, National Security Law, And The Law Of Armed Conflict In The Age Of Terror, Rosa Ehrenreich Brooks
Georgetown Law Faculty Publications and Other Works
Both international and domestic law take as a basic premise the notion that it is possible, important, and usually fairly straightforward to distinguish between war and peace, emergencies and normality, the foreign and the domestic, the external and the internal. From an international law perspective, the law of armed conflict is triggered only when a armed conflict actually exists; the rest of the time, other bodies of law are applicable. Domestically, U.S. courts have developed a constitutional and statutory jurisprudence that distinguishes between national security issues and domestic questions, with the courts subjecting government actions to far less scrutiny when …
Just Do It, Girardeau A. Spann
Just Do It, Girardeau A. Spann
Georgetown Law Faculty Publications and Other Works
Racial injustice has always been a problem in the United States. The most salient victims of the Nation's discrimination against racial minorities have included indigenous Indians, Chinese immigrants, Japanese-American citizens, Latinos, and of course blacks. But as the current war on terrorism illustrates, under the right conditions, almost any racial group can come within the scope of America's discriminatory focus. It is common to suppose that that there is a difference between the progressive and the conservative ends of the political spectrum concerning the issue of race. However, those commonly accepted differences pale in comparison to the overriding similarity that …