Law Commons^™

The Use And Abuse Of Domestic National Security Detention, Nicole Hallett

Seattle University Law Review

Are people convicted of terrorism-related offenses so dangerous that we must bend the Constitution to keep the public safe? Or should we treat them like people who commit other crimes—by prosecuting, convicting, sentencing, and then releasing them after they have served their criminal sentences? Can we trust the government to use the power to detain people without criminal charge without abusing it? The case of Adham Amin Hassoun raises these questions. Prosecuted after 9/11 for providing support to Muslims abroad in the 1990s, and sentenced under the United States’ expansive material support laws, Hassoun avoided a life sentence only to …

The Emergency Next Time, Noa Ben-Asher

Faculty Publications

This Article offers a new conceptual framework to understand the connection between law and violence in emergencies. It is by now well-established that governments often commit state violence in times of national security crisis by implementing excessive emergency measures. The Article calls this type of legal violence “Emergency-Affirming Violence.” But Emergency Violence can also be committed through governmental non-action. This type of violence, which this Article calls, “Emergency-Denying Violence,” has manifested in the crisis of the COVID-19 pandemic.

The Article offers a taxonomy to better understand the phenomenon of Emergency Violence. Using 9/11 and COVID-19 as examples, the Article proposes …

Charles Reich: Due Process In The Eye Of The Receiver, Harold Hongju Koh

Touro Law Review

No abstract provided.

Appraising 9/11: 'Sacred' Value And Heritage In Neoliberal Times, Mateo Taussig-Rubbo

Mateo Taussig-Rubbo

On September 11, 2001, United Airlines Flight 93 — one of the four airplanes hijacked that day — crashed into a vacant parcel of land in rural Pennsylvania, killing all on board. For many, including family members of those killed in the attack and the Park Service that now manages the national memorial at the site, the former strip mine was transformed into ‘sacred’ ground. Unable to settle on a price with the landowner, in 2009 the government took the property through eminent domain. Focusing on the ongoing effort in United States of America v. 275.81 Acres of Land to …

Appraising 9/11: 'Sacred' Value And Heritage In Neoliberal Times, Mateo Taussig-Rubbo

Journal Articles

On September 11, 2001, United Airlines Flight 93 — one of the four airplanes hijacked that day — crashed into a vacant parcel of land in rural Pennsylvania, killing all on board. For many, including family members of those killed in the attack and the Park Service that now manages the national memorial at the site, the former strip mine was transformed into ‘sacred’ ground. Unable to settle on a price with the landowner, in 2009 the government took the property through eminent domain. Focusing on the ongoing effort in United States of America v. 275.81 Acres of Land to …

To Catch A Terrorist: The Improper Use Of Profiling In U.S. Post-9/11 Counterterrorism, Kamillia Crawford

Honors Undergraduate Theses

The attacks of September 11, 2001 (9/11) caused thousands of deaths, national and global panic, and immediate action by the federal government to protect the borders of the United States of America (USA) from terrorism. In response to these attacks, the United States (U.S.) government enacted laws for law enforcement agencies to protect against terrorist activities. Law enforcement agencies are effective in combating terrorism, but their measures contain a major flaw - the improper use of race in profiling to address national security and public safety concerns. Racial profiling is an ineffective measure for preventing terrorism. There are solutions to …

The Ndaa, Aumf, And Citizens Detained Away From The Theater Of War: Sounding A Clarion Call For A Clear Statement Rule, Diana Cho

Loyola of Los Angeles Law Review

In the armed conflict resulting from the September 11 attacks, the executive authority to order the indefinite detention of citizens captured away from the theater of war is an issue of foreign and domestic significance. The relevant law of armed conflict provisions relevant to conflicts that are international or non-international in nature, however, do not fully address this issue. Congress also intentionally left the question of administrative orders of citizen detainment unresolved in a controversial provision of the 2012 version of the annually-enacted National Defense Authorization Act. While plaintiffs in Hedges v. Obama sought to challenge the enforceability of NDAA’s …

A Foucauldian Call For The Archaeological Excavation Of Discourse In The Post-Boumediene Habeas Litigation, Jonathan David Shaub

Northwestern University Law Review

No abstract provided.

Terrorism As An Intellectual Problem, Charles W. Collier

Charles W. Collier

The past few years have been instructive for observers of religious terrorism. Events have conspired to reveal ever more of its grim visage, inner logic, and awful potential. Religious terrorism has been exhaustively analyzed as a security problem, a military problem, an economic problem, a political problem, and more. But it is also an intellectual problem, one with particular implications for the study of law, culture, and history. This Essay examines the intellectual assumptions of religious terrorism, and it does so from three distinct perspectives: the theory of religion and American constitutional law (Part I); the common law (Part II); …

Down To The Wire: Assessing The Constitutionality Of The National Security Agency's Warrantless Wiretapping Program: Exit The Rule Of Law, Fletcher Baldwin, Robert Shaw

Fletcher N. Baldwin

The article discusses the constitutionality of warrantless wiretapping surveillance by the National Security Agency (NSA) on U.S. citizens. The wiretapping program existed weeks after the September 11, 2001 attacks, on the justification that Congress authorized the president to wiretap U.S. citizens without a warrant, and that the president had inherent authority as commander-in-chief. But it is argued that Congress did not expressly authorize the president to conduct warrantless wiretapping and that he does not have such inherent authority.

We intend this Article to be a commentary on the constitutionality of the NSA wiretapping program solely as it relates to the …

Mission Creep In National Security Law, Fletcher N. Baldwin Jr., Daniel R. Koslosky

Fletcher N. Baldwin

Many anti-terrorism measures are enacted with broad public support. There is often a general willingness on the part of the public to accept greater civil liberties deprivations in the face of a specific threat, or otherwise in times of general crisis, than would otherwise be the case. Sweeping anti-terrorism legislation is frequently crafted in reaction to the presence, or perceived presence, of immense, imminent danger. The medium and long-term consequences of the legislation may not fully be comprehended when political leaders and policymakers take swift action in the face strong public pressure in light of a recent terrorist attack or …

Introduction: Persecution Through Prosecution: Revisiting Touro Law Center’S Conference In Paris On The Dreyfus Affair And The Leo Frank Trial, Rodger D. Citron

Rodger Citron

This piece provides the introduction for the Dreyfus affair. It gives a brief overview of the actual Dreyfus affair and outlines the articles in this volume.

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.

Introduction: Persecution Through Prosecution: Revisiting Touro Law Center’S Conference In Paris On The Dreyfus Affair And The Leo Frank Trial, Rodger D. Citron

Touro Law Review

This piece provides the introduction for the Dreyfus affair. It gives a brief overview of the actual Dreyfus affair and outlines the articles in this volume.

Stochastic Constraint, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

This essay reviews Power and Constraint: The Accountable Presidency After 9/11 by Jack Goldsmith (2012).

With The Terror Presidency, Professor Jack Goldsmith wrote, hands down, the very best analysis of the national security issues surrounding President George W. Bush's tenure. In Power and Constraint: The Accountable Presidency After 9/11, Goldsmith returns to the same set of problems, but adopts a different tack. He argues that the modern wartime Executive is constrained in new ways beyond the traditional system of checks and balances, and that these new constraints combine to create an effective system that checks executive power. Though …

Mission Creep In National Security Law, Fletcher N. Baldwin Jr., Daniel R. Koslosky

UF Law Faculty Publications

Many anti-terrorism measures are enacted with broad public support. There is often a general willingness on the part of the public to accept greater civil liberties deprivations in the face of a specific threat, or otherwise in times of general crisis, than would otherwise be the case. Sweeping anti-terrorism legislation is frequently crafted in reaction to the presence, or perceived presence, of immense, imminent danger. The medium and long-term consequences of the legislation may not fully be comprehended when political leaders and policymakers take swift action in the face strong public pressure in light of a recent terrorist attack or …

Judicial Foreign Relations Authority After 9/11, Martin S. Flaherty

NYLS Law Review

No abstract provided.

The Supreme Courts: Did September 11th Accelerate Their Sanctioning The Constitutionality Of Criminalizing Suspicion?, Dannye Holley

The University of New Hampshire Law Review

“This article evaluates whether the nation‘s highest appellate courts have, on balance, been more willing to acquiesce to criminalization based on suspicion since the attacks on the World Trade Center seven years ago. The article seeks to accomplish this evaluation by comparing decisions of the United States and state supreme courts in the six years prior to September 2001 with decisions in the six years following the terrorist attack— have the courts with the greatest authority to sanction the criminalization of suspicion been more willing to do just that? Such a post-September 11th trend would be significant because, despite the …

Constitutional Overview Of Post-9/11 Barriers To Free Speech And A Free Press, Nadine Strossen

Articles & Chapters

No abstract provided.

A Choice That Leaves No Choice: Unconstitutional Coercion Under Real Id, Michael J. Allen

Seattle University Law Review

No abstract provided.

Law V. National Security: When Lawyers Make Terrorism Policy, William G. Hyland Jr.

Richmond Journal of Global Law & Business

Are lawyers strangling our government’s ability to fight the first war of the twenty-first century? Does judicial adventurism and the fear of litigation undermine the War Against Terrorism? In essence, is our national security apparatus overlawyered? This article analyzes how some lawyers have produced a synthetic “litigation culture” over the war on terror. It argues that litigation concerning electronic surveillance, interrogation and all manners of prisoner treatment has chilled counterintelligence since 9/11.

The New York City Corporation Counsel: The Best Legal Job In America, Michael A. Cardozo

NYLS Law Review

No abstract provided.

Terrorism As An Intellectual Problem, Charles W. Collier

UF Law Faculty Publications

The past few years have been instructive for observers of religious terrorism. Events have conspired to reveal ever more of its grim visage, inner logic, and awful potential. Religious terrorism has been exhaustively analyzed as a security problem, a military problem, an economic problem, a political problem, and more. But it is also an intellectual problem, one with particular implications for the study of law, culture, and history. This Essay examines the intellectual assumptions of religious terrorism, and it does so from three distinct perspectives: the theory of religion and American constitutional law (Part I); the common law (Part II); …

Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora

ExpressO

The so called “war on terror” provides the Bush administration with a unique opportunity to both establish clear guidelines for the interrogation of detainees and to make a forceful statement about American values. How the government chooses to act can promote either an ethical commitment to the norms of civil society, or an attitude analogous to Toby Keith’s “American Way,” where Keith sings that “you’ll be sorry that you messed with the USofA, ‘Cuz we’ll put a boot in your ass, It’s the American Way.”

No aspect of the “war on terrorism” more clearly addresses this balance than coercive interrogation. …

Plane Harassment: The Transportation Security Administration's Indifference To The Constitution In Administering The Government's Watch Lists, Yousri Omar

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Fighting Terrorism And Preserving Civil Liberties, James B. Comey

University of Richmond Law Review

No abstract provided.

Down To The Wire: Assessing The Constitutionality Of The National Security Agency's Warrantless Wiretapping Program: Exit The Rule Of Law, Fletcher N. Baldwin Jr., Robert B. Shaw

UF Law Faculty Publications

The article discusses the constitutionality of warrantless wiretapping surveillance by the National Security Agency (NSA) on U.S. citizens. The wiretapping program existed weeks after the September 11, 2001 attacks, on the justification that Congress authorized the president to wiretap U.S. citizens without a warrant, and that the president had inherent authority as commander-in-chief. But it is argued that Congress did not expressly authorize the president to conduct warrantless wiretapping and that he does not have such inherent authority.

We intend this Article to be a commentary on the constitutionality of the NSA wiretapping program solely as it relates to the …

If I Implore You And Order You To Set Me Free, Robert Blecker

Articles & Chapters

When Odysseus ordered his men to put wax in their ears, bind him to the mast and keep rowing until they passed the Sirens, no matter what he might later command, and then, in the throes of passion, attempted to countermand his earlier command, there, then, Constitutionalism was born in the West. We are perpetually challenged at rational moments to keep future passions in check, so when the future becomes the present, we can survive it without regret.

This brief essay summarily employs the metaphor to account for constitutional rights, long and fixed senatorial terms, life-time judicial tenure, judicial review, …

Civil Liberties And The Terrorism Prevention Paradigm: The Guilt By Association Critique, Robert M. Chesney

Michigan Law Review

Faysal Galab is a twenty-seven-year-old American citizen of Yemeni descent who was born and raised in Buffalo, New York. He is married, has three children, and used to run a gas station in the Buffalo suburb of Lackawanna. Perhaps you have heard of him; he will be spending some or all of the next ten years in federal prison because in spring of 2001 he and six other Lackawanna residents traveled to Afghanistan and trained with Al Qaeda.

It's Not Really "Assassination": Legal And Moral Implications Of Intentionally Targeting Terrorists And Aggressor-State Regime Elites, Robert F. Turner

University of Richmond Law Review

No abstract provided.