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Articles 1 - 30 of 37
Full-Text Articles in Law
Kavanaugh And The Military Commissions: Reading The Law “As Written” For An Unpopular Defendant, Peter Margulies
Kavanaugh And The Military Commissions: Reading The Law “As Written” For An Unpopular Defendant, Peter Margulies
Law Faculty Scholarship
No abstract provided.
Presidential Powers Including Military Tribunals In The October 2005 Term, Erwin Chemerinsky
Presidential Powers Including Military Tribunals In The October 2005 Term, Erwin Chemerinsky
Erwin Chemerinsky
No abstract provided.
An Overview Of The October 2005 Supreme Court Term, Erwin Chemerinsky
An Overview Of The October 2005 Supreme Court Term, Erwin Chemerinsky
Erwin Chemerinsky
No abstract provided.
The Boundless War: Challenging The Notion Of A Global Armed Conflict Against Al-Qaeda And Its Affiliates, Andrew Beshai
The Boundless War: Challenging The Notion Of A Global Armed Conflict Against Al-Qaeda And Its Affiliates, Andrew Beshai
Loyola of Los Angeles Law Review
The U.S. military response to the 9/11 attacks has expanded into a “global war” without a definite geographic scope. Both the Bush and Obama administrations have executed attacks in several countries including Somalia, Afghanistan, Pakistan, and Yemen under the “global war” paradigm. This Article challenges the concept of a global armed conflict, instead favoring the “epicenter-of-hostilities” framework for determining the legality of military action against Al-Qaeda, the Taliban, and other terrorist groups. This approach, rooted in established international law, measures the existence of specific criteria in each nation where hostile forces are present to determine if an armed conflict in …
Presidential Powers Including Military Tribunals In The October 2005 Term, Erwin Chemerinsky
Presidential Powers Including Military Tribunals In The October 2005 Term, Erwin Chemerinsky
Touro Law Review
No abstract provided.
An Overview Of The October 2005 Supreme Court Term, Erwin Chemerinsky
An Overview Of The October 2005 Supreme Court Term, Erwin Chemerinsky
Touro Law Review
No abstract provided.
Legal Affairs: Dreyfus, Guantánamo, And The Foundation Of The Rule Of Law, David Cole
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.
Concluding Remarks On Non-International Armed Conflicts, Yoram Dinstein
Concluding Remarks On Non-International Armed Conflicts, Yoram Dinstein
International Law Studies
No abstract provided.
Will-O' -The-Wisp? The Search For Law In Non-International Armed Conflicts, John F. Murphy
Will-O' -The-Wisp? The Search For Law In Non-International Armed Conflicts, John F. Murphy
International Law Studies
No abstract provided.
Defining Non-International Armed Conflict: A Historically Difficult Task, David E. Graham
Defining Non-International Armed Conflict: A Historically Difficult Task, David E. Graham
International Law Studies
No abstract provided.
Judicial Foreign Relations Authority After 9/11, Martin S. Flaherty
Judicial Foreign Relations Authority After 9/11, Martin S. Flaherty
NYLS Law Review
No abstract provided.
Use Of Unmanned Systems To Combat Terrorism, Raul A. "Pete" Pedrozo
Use Of Unmanned Systems To Combat Terrorism, Raul A. "Pete" Pedrozo
International Law Studies
No abstract provided.
An Unintended Casualty Of The War On Terror, Aya Gruber
An Unintended Casualty Of The War On Terror, Aya Gruber
Publications
As the dust of the Bush administration's war on terror settles, casualties are starting to appear on the legal battlefield. The United States' human rights reputation and the Supreme Court's international influence lay wounded in the wake of U.S. policies that flouted international law by advocating torture, suborning indefinite detention, and erecting irregular tribunals. Through declining citation, the courts of the world are telling the Supreme Court that if it does not respect international and foreign law, international and foreign courts will not respect it. Some might object that the Supreme Court should not be lumped with the Bush administration …
An Unintended Casualty Of The War On Terror, Aya Gruber
An Unintended Casualty Of The War On Terror, Aya Gruber
Aya Gruber
As the dust of the Bush administration’s war on terror settles, casualties are starting to appear on the legal battlefield. The United States’ human rights reputation and the Supreme Court’s international influence lay wounded in the wake of U.S. policies that flouted international law by advocating torture, suborning indefinite detention, and erecting irregular tribunals. Through declining citation, the courts of the world are telling the Supreme Court that if it does not respect international and foreign law, international and foreign courts will not respect it. Some might object that the Supreme Court should not be lumped with the Bush administration …
The Law Of Armed Conflict And Detention Operations In Afghanistan, Matthew C. Waxman
The Law Of Armed Conflict And Detention Operations In Afghanistan, Matthew C. Waxman
International Law Studies
No abstract provided.
Making The Case For Conflict Bifurcation In Afghanistan: Transnational Armed Conflict, Al Qaida, And The Limits Of Associated Militia Concept, Geoffrey S. Corn
Making The Case For Conflict Bifurcation In Afghanistan: Transnational Armed Conflict, Al Qaida, And The Limits Of Associated Militia Concept, Geoffrey S. Corn
International Law Studies
No abstract provided.
Law Of War Issues In Ground Hostilities In Afghanistan, Gary D. Solis
Law Of War Issues In Ground Hostilities In Afghanistan, Gary D. Solis
International Law Studies
No abstract provided.
The Long War, The Federal Courts, And The Necessity/Legality Paradox, Stephen I. Vladeck
The Long War, The Federal Courts, And The Necessity/Legality Paradox, Stephen I. Vladeck
University of Richmond Law Review
No abstract provided.
Fade To Black: The Formalization Of Jackson's Youngstown Taxonomy By Hamdan And Medellin, Michael J. Turner
Fade To Black: The Formalization Of Jackson's Youngstown Taxonomy By Hamdan And Medellin, Michael J. Turner
American University Law Review
This Comment argues that the Court’s holding in Medellin modifies Jackson’s tripartite taxonomy by effectively eliminating the “zone of twilight.” By requiring a “systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned,” the Court is essentially extending the first category—executive action with the express or implied authorization of Congress—to cover the middle “zone of twilight,” at odds with the very purpose of the zone. Additionally, the Comment argues that Hamdan establishes Congress’s “disabling” power in the third category, which, combined with Medellin’s interpretation, crates a new standard for Jackson’s taxonomy, one moor similar …
Legislating Clear-Statement Regimes In National-Security Law, Jonathan F. Mitchell
Legislating Clear-Statement Regimes In National-Security Law, Jonathan F. Mitchell
Jonathan F. Mitchell
Congress’s national-security legislation will often require clear and specific congressional authorization before the executive can undertake certain actions. The War Powers Resolution, for example, prohibits any law from authorizing military hostilities unless it “specifically authorizes” them. And the Foreign Intelligence Surveillance Act of 1978 required laws to amend FISA or repeal its “exclusive means” provision before they could authorize warrantless electronic surveillance. But efforts to legislate clear-statement regimes in national-security law have failed to induce compliance. The Clinton Administration inferred congressional “authorization” for the 1999 Kosovo War from an appropriations statute that failed to specifically authorize the conflict. And the …
Starting From Here, Ashley R. Deeks
The Treatment Of Detainees And The "Global War On Terror": Selected Legal Issues, David Turns
The Treatment Of Detainees And The "Global War On Terror": Selected Legal Issues, David Turns
International Law Studies
No abstract provided.
Law V. National Security: When Lawyers Make Terrorism Policy, William G. Hyland Jr.
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.
Beyond Guantanamo, Obstacles And Options, Greg Mcneal
Beyond Guantanamo, Obstacles And Options, Greg Mcneal
Greg McNeal
The essay focuses on the structure of the military commission system, to date left largely unaltered by Boumediene, but which Congressional reformers will need to modify in order to ensure fair trials. In Part 1, I identify three specific structural reforms necessary to improve military commissions. In Part 2, I focus on obstacles created by the current commissions system which will affect the ability of Congressional reformers to abolish military commissions or transition to national security courts.
Going It Alone: The Terror Presidency: Justice And Judgment Inside The Bush Administration, Kenneth Anderson
Going It Alone: The Terror Presidency: Justice And Judgment Inside The Bush Administration, Kenneth Anderson
Book Reviews
Jack Goldsmith's The Terror Presidency is one of the most important evaluations of the Bush Administration's War on Terror to come from inside the administration. More than just a memoir, the book offers a cogent historical and legal analysis of the profound dilemmas that confront administration officials caught between competing demands of protecting the American public while respecting civil liberties. The review sympathetically considers the issues as presented in the book, and traces through the ways in which these difficult matters, all the ones that have confronted the Bush administration and created so many political disputes, will continue to confront …
Constraints On The President's Power To Interpret Common Article Three Of The Geneva Conventions, Heather Sensibaugh
Constraints On The President's Power To Interpret Common Article Three Of The Geneva Conventions, Heather Sensibaugh
Heather Sensibaugh
This paper explores whether the President has authority to violate customary international law norms prohibiting outrages upon personal dignity, in particular humiliating and degrading treatment by his own interpretation in the form of an executive order pursuant to the Military Commissions Act of 2006. This article argues that, in interpreting the MCA, the President is bound to comply with definitions provided by Congress and where no definitions are specified. The President’s interpretive authority is constrained by customary meanings of Common article 3 of the 1949 Geneva Conventions.
Holding Enemy Combatants In The Wake Of Hamdan, Ronald D. Rotunda
Holding Enemy Combatants In The Wake Of Hamdan, Ronald D. Rotunda
Ronald D. Rotunda
The article offers, inter alia, a succinct survey of the historical and jurisprudential background for the detainee cases and military commissions cases - including a number of important factual details glossed over in most reporting on the cases (e.g., Padilla has stipulated that he was an enemy spy sent to the United States; it was Hamdan's own defense counsel who had asked to exclude him from the voir dire portion of the proceedings) - as well as legal issues that may still arise.
The Unitary Executive, Jurisdiction Stripping, And The Hamdan Opinions: A Textualist Response To Justice Scalia, Gary S. Lawson, Steven Calabresi
The Unitary Executive, Jurisdiction Stripping, And The Hamdan Opinions: A Textualist Response To Justice Scalia, Gary S. Lawson, Steven Calabresi
Faculty Scholarship
In Hamdan v. Rumsfeld, a five to three majority of the United States Supreme Court held unlawful the Bush Administration's use of military commissions to try alien combatant detainees held at the United States airbase in Guantanamo Bay, Cuba. The most basic issue in Hamdan was whether the Supreme Court had jurisdiction to hear the case. Justice Scalia's dissenting opinion argued that the Detainee Treatment Act of 2005 stripped the Supreme Court and all other courts of jurisdiction to hear habeas cases such as Hamdan's.
Hamdan argued in the Supreme Court that to read the Detainee Treatment Act to …
Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora
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. …
The Cost Of Confusion: Resolving Ambiguities In Detainee Treatment, Kenneth Anderson
The Cost Of Confusion: Resolving Ambiguities In Detainee Treatment, Kenneth Anderson
Reports
This short policy paper considers US counterterrorism policy with particular attention to treatment of detainees in matters of challenging detention, interrogation, trial of detainees, and release. It analyzes the existing US war on terror and considers future policies that would address both national security concerns and human rights/civil liberties concerns. The paper is written by two experts and advocates in counterterrorism-related issues, coming from the center right and the center left in American politics, as part of a project of the Stanley Foundation, Bridging the Foreign Policy Divide, which publishes papers by pairs of experts coming from conservative and progressive …