Law Commons^™

Strengthening Security And Oversight At Biological Research Laboratories, Michael Greenberger

Michael Greenberger

With the advent of the Anthrax attacks in the fall of 2001, this Nation has been confronted with a serious policy conundrum. On the one hand, we have strengthened programs that encourage the use of our best scientific resources to develop countermeasures to the weaponization of highly dangerous biopathogens. On the other hand, research on those countermeasures requires the use of the very biopathogens we seek to defeat. There have been many mishaps in the handling of those pathogens, which raises the frightening prospect that the research may be as (or more) dangerous than the potential bioterrorist acts themselves. Indeed, …

Indefinite Material Witness Detention Without Probable Cause: Thinking Outside The Fourth Amendment, Michael Greenberger

Michael Greenberger

A constitutional issue recently addressed by the United States Court of Appeals for the Second Circuit in United States v. Awadallah, 349 F.3d 42 (2003), has not received the widespread attention of high-profile litigation concerning the Justice Department's other controversial counter-terrorism policies. It is equally important. The issue arises out of Attorney General Ashcroft's announcement shortly after the terrorist attacks of September 11, 2001 that the aggressive detention of material witnesses [was] vital to preventing, disrupting or delaying new attacks. Since that time, the Department of Justice has used the federal material witness statute (18 U.S.C. Section 3144) to arrest …

Project Bioshield: Linking Bioterrorism Threats And Countermeasure Procurement To Enhance Terrorism Preparedness, Michael Greenberger

Michael Greenberger

No abstract provided.

Blood Libel: Radical Islam’S Conscription Of The Law Of Defamation Into A Legal Jihad Against The West—And How To Stop It, Robert A. Pate

Robert A Pate

On May 19th, 2009, a panel of distinguished legal professionals assembled in Washington, D.C. at a conference, entitled Libel Lawfare: Silencing Criticism of Radical Islam, to discuss radical Islam’s exploitation of Western libel laws to silence authors and journalists who seek to expose terror-financing networks and criticize radical Islam. The debate also embodied a cresting wave of public concern about the surprising ways Western laws enable this assault.This paper seeks to call attention to two critical mistakes, which were perpetuated by panelists at the conference and which are consistently present in current libel lawfare scholarship. Foremost, no one has yet …

In Search Of Justice: Increasing The Risk Of Business With State Sponsors Of Terror, Gabriel C. Lajeunesse

Gabriel C. Lajeunesse

If the aims of tort law are deterrence, compensation, and provision of equitable distribution of risks, U.S. anti-terrorism laws have been marginally effective at best. Though Congress has passed legislation providing causes of action to U.S. victims of terrorism, compensation of victims is often difficult and terrorists are rarely deterred. Attempts to provide such recourse include the Antiterrorism Act of 1991 (“ATA”), the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), and the Flatow Amendment to the Foreign Sovereign Immunities Act (“FSIA”). These attempts, however, are not enough. Until international banks and insurers realize the potential risk of doing …

Securing Our Infrastructure: Private/Public Information Sharing, Rena Steinzor

Rena I. Steinzor

No abstract provided.

An Overview Of Tolls To Statutes Of Limitations On Account Of War: Are They Current And Relevant In The Post-September 11th Era?, Hon. Mark Dillon

Hon. Mark C. Dillon

The devastation of the attacks that occurred at the World Trade Center on September 11, 2001 included costly disruption to the operation of courts in the City and State of New York. A court facility at Five World Trade Center was destroyed. Attorneys were among the 2,752 persons killed in the event. Law offices were destroyed. Key litigation witnesses and documents were lost forever. Thousands of attorneys were unable to access their work for days. State courts in Manhattan did not reopen for business until September 17, 2001. Amidst the turmoil and confusion, there was a defined set of potential …

Community Policing Within A Counter-Terrorism Context: The Role Of Trust When Working With Muslim Communities To Prevent Terror Crime, Basia Spalek

basia spalek

Recently, community-based models of policing have gained increasing prominence within the context of counter-terrorism, an area that has traditionally been dominated by ‘hard’, top-down models of policing. The following article draws upon a research study that examined community policing within a counter-terrorism context within the UK in order to help shed light upon how police officers might work with communities in order to prevent terror crime. The article focuses in particular upon the notion of trust within a counter-terrorism context and reflects upon the importance of cultural intelligence for policing within a counter-terror context, a context marked by suspicion, distrust …

Norm Internalization Through Trials For Violations Of International Law: Four Conditions For Success And Their Application To Trials Of Detainees At Guantanamo Bay, Vijay M. Padmanabhan

Vijay M Padmanabhan

Norm internalization is an objective for trials for violations of international law, which seeks to use the trial to demonstrate to a target audience, usually the community of the defendant, the costs of violating international law, and the stigma of being a violator. The purpose of this exercise is to internalize in that audience a respect for international law and for the norm in question that drives the audience not to repeat the violation in the future. Some scholars have argued that this purpose should be the primary purpose behind international criminal trials. Others have argued that it should, at …

Terrorism Risk In A Post-9/11 Economy: The Convergence Of Capital Markets, Insurance, And Government Action, Robert J. Rhee

Robert Rhee

September 11 changed the American economy and the global insurance market. The insurance industry no longer covers terrorism risk for "free." The traditional insurance mechanism alone cannot spread the risk of repeated catastrophic losses. Beyond the Terrorism Risk Insurance Act of 2002 lingers the questions of a longterm solution and government's role therein. Government can assume different roles: reinsurer, wealth (re)distributor, regulator, or a combination thereof. This article suggests that the government should foster a regulatory and tax environment in which the private sector can develop a capital market solution for terrorism risk. Securitization is an alternative to reinsurance and …

Insurance For Acts Of Terrorism, Robert J. Rhee

Robert Rhee

This chapter discusses insurance case law arising from acts of terrorism, including those arising from the September 11 attacks. It analyzes the Terrorism Risk Insurance Act of 2002 (TRIA), as amended by the Terrorism Risk Insurance Act of 2005 and the Terrorism Risk Insurance Program Reauthorization Act of 2007, as well as the administrative program created by the legislation. Examples are provided and NAIC Policyholder Disclosure Notice forms are included. Policy considerations surrounding TRIA are also discussed including insurance industry strategies, the difficulties of assessing terrorism risks, the effect of TRIA subsidized insurance on the market, and the benefits and …

Catastrophic Loss, Alternative Risk Transfer, And Terrorism Insurance, Robert J. Rhee

Robert Rhee

This paper constitutes a compilation of summary entries on catastrophic loss, alternative risk transfer, and the Terrorism Risk Insurance Act of 2002 and the Terrorism Risk Insurance Extension Act of 2005, along with references and further reading.

Francis Gates V. Syrian Arab Republic, 2008 Wl 4367284 (D.D.C. 2008), Gabriel C. Lajeunesse

Gabriel C. Lajeunesse

On September 26, 2008, Judge Rosemary M. Collyer, U.S. District Court for the District of Columbia, handed down a judgment for over $400 million to the survivors of Jack Armstrong or Jack Hensley, two American contractors brutally murdered by al-Qa’ida in Iraq (AQI). The judgment was rendered against the Government of Syria—held liable for the murders in a federal cause of action under the recently amended Foreign Sovereign Immunities Act (FSIA) for Syria’s material support to AQI.

Countering Iranian Malign Influence: The Need For A Regional Response, Gabriel C. Lajeunesse, William Wunderle

Gabriel C. Lajeunesse

Abstract: The behavior and the policies pursued by Iran ’ s current leadership pose profound and wide-ranging challenges to U.S. interests, the interests of its friends and allies, and the international community as a whole. Particularly concerning is Iran ’ s ability to foment instability through the use of terrorism. Recognizing this, the authors participated in a series of roundtables, discussions, and forums on Iranian Malign Influence. Participants included military and civilian experts from a number of Middle Eastern, European, and Central Asian countries, U.S. think tanks, and U.S. intelligence and interagency subject matter experts. This paper is a reflection …

The Original Understandings Of The Capture Clause, Aaron D. Simowitz

Aaron D. Simowitz

The Congress shall have power to . . . To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water. US Const Art I, § 8, cl 11.

Although the Capture Clause may seem obscure today, the power it embodies was crucially important to the early republic. General Washington declared, even during the Revolutionary War, that a centralized and standardized system for the handling of prizes was vital to the war effort. The first court established by the fledging federal government was the federal appellate court of prize. This court heard over a …

Policy Options For The Obama Administration: The Foreign Sovereign Immunities Act As A Tool Against State Sponsors Of Terrorism, Steve Perles, Gabriel C. Lajeunesse

Gabriel C. Lajeunesse

The Foreign Sovereign Immunities Act, as amended in 2008, may provide an exploitable policy lever for the Obama administration as it seeks to deal with threats posed by state sponsors of terror such as Iran and Syria. Supporting private causes of action by victims of terror is both just and good policy.

The Case Against National Security Courts, Stephen I. Vladeck

Stephen I. Vladeck

Since September 11, calls for a hybrid national security court to handle special terrorism cases have taken on a new-found prominence, as courts and policymakers alike have struggled with the complex series of legal and logistical problems posed by the U.S. government's detention of enemy combatants, especially the hundreds of non-citizens so detained at Guantanamo Bay, Cuba. National security courts are, for many, an increasingly attractive compromise solution to the seemingly irreconcilable division between those who believe that terrorism suspects are not entitled to the traditional criminal process and those who believe not only that they are, but that any …

Prevention Or Pretext: The Designation Of Foreign Terrorist Organizations, Syed Ali M. Jafri

Syed Ali M. Jafri

This paper examines whether the “Foreign Terrorist Organization” & “Specially Designated Foreign Terrorists” designations are applied in a consistent manner. The author concludes that the designations are applied inconsistently and are used in the post September 11th era as a tool not only against legitimate terrorist targets, but also against the ideological opponents of United States foreign policy. Specifically the designations are used against Islamic based political movements. The pre-textual use of terrorist designations against ideological opponents weakens the United States position in the battle against terrorism, and undermines their legitimate security concerns. The current application of the designation schemes …

Fighting With Faith: The Role Of Religion In Dealing With Modern Conflict, Sean P. Mcdonnell

Sean P. McDonnell

Though current modes of cultural and ethnic asymmetrical conflict may seem novel, they universally draw on something far older and far more ingrained in man’s ancient roots: his faith in and relationship with the divine. Perhaps uniquely among cultural factors, religion is a single consistent issue latent in almost all contemporary intractable conflicts. If properly deployed, the symbols, language, and meanings of religious traditions may prove as powerful in resolving conflict as they have been in fueling it. How can those interested in healing these wide cultural schisms employ the power of religion in a restorative resolution process? This essay …

Homeland Security Planning: What Victory Gardens And Fidel Castro Can Teach Us In Preparing For Food Crises In The U.S., A. Bryan Endres, Jody M. Endres

A. Bryan Endres

Food security is an essential element of comprehensive government crisis response plans. The absence of a terrorist attack on the agricultural sector, however, has been “more by luck than design” and the American public has a false sense of food security due to the invisibility of its complicated food supply chain. Current planning efforts, grounded in the Bioterrorism Act of 2002 and a series of Presidential Directives, rely exclusively on the status quo of conventional agriculture and neglect the potential security benefits of regional and local food networks. Two historical examples, the World War II Victory Garden program and Cuba’s …

Terrorizing Rhetoric: The Advancement Of U.S. Hegemony Through The Lack Of A Definition Of ‘Terror’, Alexander J. Marcopoulos

Alexander J. Marcopoulos

As the usage of the word “terror” and its variants became increasingly universal in, and thus important to, foreign affairs post-September 11, the usage of the word has itself become a source of power. Specifically, the ability of certain nations such as the United States to invoke the word “terror” to justify their actions and persuade organizations and nations of the world to cooperate with them has given rise to a unique form of hegemony that warrants analysis outside of the traditional forms of hard power and soft power. This aim of this Paper is to analyze the implications on …

Reliability, Waterboarded Confessions And Reclaiming The Lessons Of ‘Brown V. Mississippi’ In The Terrorism Cases, M. Katherine B. Darmer

M. Katherine B. Darmer

This essay traces a "protection gap" for terrorism suspects to a shift away from a concern with the reliability of confessions in the Supreme Court's post-"Miranda" jurisprudence. It argues that in order to avoid results plainly inconsistent with the Court's earlier repudiation of torture almost 75 years ago in "Brown v. Mississippi," notions of due process must be interpreted more broadly, consistent with "Brown's" recognition of an absolute prohibition on torture in our adversarial system.

Terrorism As A Threat To Peace, René Värk

René Värk

No abstract provided.

Agroterrorism And Ecoterrorism: A Survey Of Indo-American Approaches Under Law And Policy To Prevent And Defend Against The Potential Threats Ahead, Kevin H. Govern

Kevin H. Govern

“Agroterrorism is a subset of bioterrorism, and is defined as the deliberate introduction of an animal or plant disease with the goal of generating fear, causing economic losses, and/or undermining social stability.” Its partner in crime is ecoterrorism, “the use or threatened use of violence of a criminal nature against innocent victims or property by an environmentally-oriented, subnational group for environmental-political reasons, or aimed at an audience beyond the target, often of a symbolic nature.” Furthermore, “[a]s recently as June 2004, the FBI designated ‘eco-terrorism’ . . . as the [U.S.’] number one militant chal- lenge emanating from inside its …

Criminalizing Force: Resolving The Threshold Question For The Crime Of Aggression In The Context Of Modern Conflict, Keith A. Petty

Keith A. Petty

The crime of aggression will soon become reality when the International Criminal Court adopts an operational definition to the Rome Statute in 2010. Criminalizing force in this manner will add to the body of law regulating the initiation of armed force – jus ad bellum. Regime elites and policy makers must ask which applications of force will fall within the jurisdictional parameters of this new offense. Will it apply to humanitarian intervention? Will the Prosecutor initiate an investigation into actions taken to combat terrorism? These issues are resolved by answering the threshold question for the crime of aggression.

The draft …

Lawyers And The War, Robert Power

Robert C Power

No abstract provided.