Law Commons^™

The Role Of The Courts In Time Of War, William C. Banks

Washington and Lee Law Review Online

The role of the courts in judging the actions of government in wartime has ranged from extreme deference to careful probing of alleged government excesses over more than two centuries. The courts’ record has reflected the nature of the armed conflicts the United States has engaged in and the legal bases for the actions at issue. In the aggregate, the courts have served as a necessary counterweight to government overreaching in times of national security crisis. It is easy to underestimate the institutional problems confronting judges who are asked to make momentous decisions in times of national crisis—difficulties of fact-finding …

The United Nations Security Mechanism And Africa: Challenges And The Way Forward, Nebiyou Dagne Tessema

Theses and Dissertations

The dissertation will, therefore, examine the evolving concept of security; the security mechanisms of the UN, AU and the African sub-regional organizations and their respective mandates in the maintenance of peace and security in Africa; assess the state of security in the continent; identify the key factors for the deterioration of the security situation in the continent; evaluate the effectiveness of the existing international security mechanisms in overcoming this dangerous trend; identify the key challenges and drawbacks in the present global security system; and suggest some recommendations on the way forward to meet the security challenges of the African continent …

Interning The “Non-Alien” Other: The Illusory Protections Of Citizenship, Natsu Taylor Saito

Natsu Taylor Saito

Saito draws parallels between the internment of Japanese Americans during WWII and the current actions being taken by the US government as it seeks out terrorists in the post-9/11 world. The action of unequal prosecution of citizens based on race has roots that extend far back in American history, and the unfair internment of citizens in the 20th century should not be considered an aberration of public policy.

Interpreting Force Authorization, Scott Sullivan

Scott Sullivan

The Enhanced Proliferation Control Initiative: National Security Necessity Or Unconstitutionally Vague?, Daniel H. Joyner

Georgia Journal of International & Comparative Law

No abstract provided.

Don't Fear The Leaker: Thoughts On Bureaucracy And Ethical Whistleblowing, Glenn Harlan Reynolds

Scholarly Works

In this brief Essay, I argue that rather than trying to eliminate leaks entirely, which experience demonstrates is impossible, we should instead try to channel leaks so that they provide the maximum benefit to transparency while reducing risks to national security and other secrecy concerns. I also offer some preliminary suggestions about how to accomplish this goal.

Restoring Foia's Reach To The National Security Council, Andrew Yingling

CommLaw Conspectus: Journal of Communications Law and Technology Policy (1993-2015)

No abstract provided.

Military Commissions In America? Domestic Liberty Implications Of The Military Commissions Act Of 2006, Sean Riordan

Touro Law Review

No abstract provided.

The Federal Witness Protection Program Revisited And Compared: Reshaping An Old Weapon To Meet New Challenges In The Global Crime Fighting Effort, Raneta Lawson Mack

University of Miami International and Comparative Law Review

No abstract provided.

Circumventing The Constitution For National Security: An Analysis Of The Evolution Of The Foreign Intelligence Exception To The Fourth Amendment’S Warrant Requirement, Sarah Fowler

University of Miami National Security & Armed Conflict Law Review

Though few are even aware of its existence, the foreign intelligence exception to the Fourth Amendment’s warrant requirement affects the lives of nearly every American. Recent leaks of top-­‐secret National Security Administration documents depict how the government has morphed the exception into a massive catch all that allows intelligence agencies to perform invasive searches without a warrant and in complete disregard of the Constitution. The foreign intelligence exception began as a narrow tool to shield sensitive national security investigations, but its application has reached an alarming breadth.

This note explores the creation and expansion of the foreign intelligence exception, tracing …

Editors' Foreword, Editors

Fordham Law Review

No abstract provided.

The Nsa In Global Perspective: Surveillance, Human Rights, And International Counterterrorism, Peter Margulies

Fordham Law Review

No abstract provided.

Substantive Due Process And U.S. Jurisdiction Over Foreign Nationals, Jennifer K. Elsea

Fordham Law Review

The due process rights of suspected terrorists have played a major role in the debate about how best to engage terrorist entities after September 11, 2001. Does citizenship or immigration status have a bearing on the treatment of terrorists? Does location within or outside the United States matter? This Article explores the connection between citizenship and alienage, enemy status, allegiance, and due process rights against a backdrop of international law. It surveys the application of due process to citizens and aliens based on the location of misconduct within or outside the territory of the United States and notes the expansion …

The Citizenship Of Others, Muneer I. Ahmad

Fordham Law Review

No abstract provided.

Passport Revocation As Proxy Denaturalization: Examining The Yemen Cases, Ramzi Kassem

Fordham Law Review

No abstract provided.

The Boston Bombers, Leti Volpp

Fordham Law Review

No abstract provided.

Expatriating Terrorists, Peter J. Spiro

Fordham Law Review

No abstract provided.

Citizenship And Protection, Andrew Kent

Fordham Law Review

This Article discusses the role of U.S. citizenship in determining who would be protected by the Constitution, other domestic laws, and the courts. Traditionally, within the United States, both noncitizens and citizens have had more or less equal civil liberties protections. But outside the sovereign territory of the United States, noncitizens have historically lacked such protections. This Article sketches the traditional rules that demarcated the boundaries of protection, then addresses the functional and normative justifications for the very different treatment of noncitizens depending on whether or not they were present within the United States.

Biodefense And Constitutional Constraints, Laura K. Donohue

University of Miami National Security & Armed Conflict Law Review

No abstract provided.

Soil And Citizenship, Linda Bosniak

Fordham Law Review

No abstract provided.

Detention After The Aumf, Stephen I. Vladeck

Fordham Law Review

No abstract provided.

Accessing Justice Amid Threats Of Contagion, Janet E. Mosher

Osgoode Hall Law Journal

Plans to prepare for a global pandemic have proliferated in recent years, and “legal preparedness” has emerged as a critical component of such plans. Commonly, the threat of disease is analogized to terrorism and recast as an issue of national security. In this framing, laws authorizing surveillance, containment, and forced treatment are understood as necessary. Law’s promise of protection against abuses in the exercise of such powers through procedural rights of review offers meagre comfort for critics concerned that individual liberties will readily yield to national security and public health in the context of an actual pandemic. An alternative framing …

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.

Country Report On Counterterrorism: United States Of America, Sudha Setty

Faculty Scholarship

The terrorist attacks of September 11, 2001, led to profound changes in societal viewpoints, political agendas, and the legal authorization to combat terrorism. The United States continues to struggle with keeping its population safe while maintaining the principles of democracy and the rule of law essential to the nation’s character. The U.S. response to terrorism has been multifaceted and expansive, reflective of the U.S. role in global security; debate over these matters will continue for the foreseeable future.

This report, prepared for the American Society of Comparative Law, offers summary, analysis and critique of many aspects of counterterrorism law, including …

Surveillance, Speech Suppression And Degradation Of The Rule Of Law In The “Post-Democracy Electronic State”, David Barnhizer

David Barnhizer

None of us can claim the quality of original insight achieved by Alexis de Tocqueville in his early 19th Century classic Democracy in America in his observation that the “soft” repression of democracy was unlike that in any other political form. It is impossible to deny that we in the US, the United Kingdom and Western Europe are experiencing just such a “gentle” drift of the kind that Tocqueville describes, losing our democratic integrity amid an increasingly “pretend” democracy. He explained: “[T]he supreme power [of government] then extends its arm over the whole community. It covers the surface of society …

The Rise Of Speed Deportation And The Role Of Discretion, Shoba S. Wadhia

Journal Articles

In 2013, the majority of people deported never saw a courtroom or immigration judge. Instead, they were quickly removed by the Department of Homeland Security via one of several procedures collectively referred to as “speed deportation.” The policy goals of speed deportation are economic; these processes save government resources from being spent on procedural safeguards such as a trial attorney, immigration judge, and a fundamentally fair hearing. Higher deportation numbers may also benefit the image the government seeks to portray to policymakers who support amplified immigration enforcement. However, the human consequences of speed deportation are significant and can result in …

The Game Changer: How The P5 Caused A Paradigm Shift In Norm Diffusion Post-9/11, Catherine Moore

All Faculty Scholarship

This Commentary recognizes a policy shift across nations of favoring national security over human rights and argues that smaller states were influenced by the key international decision makers, the Permanent Five Members (P5) of the United Nations Security Council, via norm diffusion. In doing so, it offers an alternative theory for how and why human rights norms have consistently been violated in the pursuit of security. Oppressive regimes have used the term “counterterrorism” or “national security” to justify rights violations because they see larger powers allowing these violations. This Commentary contends that the P5 are responsible for beginning this phenomenon …

Amending The Economic Espionage Act To Require The Disclosure Of National Security-Related Technology Thefts, David Orozco

Catholic University Law Review

No abstract provided.

Cybersecurity And The Administrative National Security State: Framing The Issues For Federal Legislation, David G. Delaney

Articles by Maurer Faculty

In the digital age, every part of federal government has critical cybersecurity interests. Many of those issues are brought into sharp focus by Edward Snowden's disclosure of sensitive government cyber intelligence programs conducted by the National Security Agency, the Federal Bureau of Investigation, and the Central Intelligence Agency. Courts are reviewing various constitutional and statutory challenges to those programs, two government review groups have reported on related legal and policy issues, and Congress is considering cyber intelligence reform proposals. All of this action comes on the heels of significant efforts by successive administrations to restructure government and pass comprehensive cybersecurity …

Warrant Canaries Beyond The First Amendment: A Comment, Jonathon Penney

Articles, Book Chapters, & Popular Press

Warrant canaries have emerged as an intriguing tool for Internet companies to provide some measure of transparency for users while also complying with national security laws. Though there is at least a reasonable argument for the legality of warrant canaries in the U.S. based primarily on First Amendment "compelled speech" doctrine, the same cannot be said for the use of warrant canaries in other "Five Eyes” intelligence agency countries — United Kingdom, Canada, New Zealand, and Australia — where the legality of warrant canaries has yet to be examined in either cases or scholarship. This comment, which provides an overview …