Law Commons^™

U.S. Race Relations And Foreign Policy, Susan D. Page

Michigan Journal of Race and Law

It is easy for Americans to think that the world’s most egregious human rights abuses happen in other countries. In reality, our history is plagued by injustices, and our present reality is still stained by racism and inequality. While the Michigan Journal of International Law usually publishes only pieces with a global focus, we felt it prudent in these critically important times not to shy away from the problems facing our own country. We must understand our own history before we can strive to form a better union, whether the union be the United States or the United Nations. Ambassador …

Thoughts, Crimes, And Thought Crimes, Gabriel S. Mendlow

Michigan Law Review

Thought crimes are the stuff of dystopian fiction, not contemporary law. Or so we’re told. Yet our criminal legal system may in a sense punish thought regularly, even as our existing criminal theory lacks the resources to recognize this state of affairs for what it is—or to explain what might be wrong with it. The beginning of wisdom lies in the seeming rhetorical excesses of those who complain that certain terrorism and hate crime laws punish offenders for their malevolent intentions while purporting to punish them for their conduct. Behind this too-easily-written-off complaint is a half-buried precept of criminal jurisprudence, …

International Civil Individual Responsibility And The Security Council: Building The Foundations Of A General Regime, Vincent-Joël Proulx

Michigan Journal of International Law

This Article focuses on a few tools at the disposal of the United Nations Security Council (“UNSC”) to enhance individual (read: civil) responsibility concerning nonstate terrorist actors with a view to opening other avenues of inquiry regarding other subversive nonstate actors (“NSAs”), for instance in the areas of transnational torts, human rights (“HR”) violations, and environmental damage caused by business entities. As discussed in Part V, recent developments surrounding the application of the Alien Tort Claims Act (“ATCA”) in the United States and the prospect of establishing a basis for universal civil jurisdiction further signal that no such solid basis …

Separate And Unequal: The Law Of "Domestic" And "International" Terrorism, Shirin Sinnar

Michigan Law Review

U.S. law differentiates between two categories of terrorism. “International terrorism” covers threats with a putative international nexus, even when they stem from U.S. citizens or residents acting only within the United States. “Domestic terrorism” applies to political violence thought to be purely domestic in its origin and intended impact. The law permits broader surveillance, wider criminal charges, and more punitive treatment for crimes labeled international terrorism. Law enforcement agencies frequently consider U.S. Muslims “international” threats even when they have scant foreign ties. As a result, they police and punish them more intensely than white nationalists and other “domestic” threats. This …

How Safe Is Too Safe? Exemption 7(F) And The Withholding Of Critical Documents, Grant Snyder

Michigan Journal of Environmental & Administrative Law

The Freedom of Information Act (FOIA) is one of the main tools used by the American public to investigate the actions of its government. Congress created FOIA in an attempt to make most government documents available to the public. Today, the FOIA process favors government withholding. This bias comes from institutional issues in courts’ review of FOIA challenges.

In the environmental and administrative law context, federal agencies use many exemptions to withhold government records from citizen and non-profit groups. Agencies that are tasked with permitting and regulating energy pipelines and other environmentally-sensitive infrastructure now regularly cite Exemption 7(F). These agencies …

The Theory And Practice At The Intersection Between Human Rights And Humanitarian Law, Monica Hakimi

Reviews

The United States is more than fifteen years into a fight against terrorism that shows no sign of abating and, with the change in administration, appears to be intensifying. Other Western democracies that have historically been uneasy about U.S. counterterrorism policies have, in recent years, shifted toward those policies. And armed nonstate groups continue to commit large-scale acts of violence in multiple distinct theaters. The legal issues that these situations present are not entirely new, but neither are they going away. Recent publications, like the three works under review, thus provide useful opportunities to reflect on and refine our thinking …

Executive Power And National Security Power, Julian Davis Mortenson, Andrew Kent

Book Chapters

The constitutional text governing national security law is full of gaps, oversights, and omissions. In combination with the authorization principle -- which requires all federal actors to identify particularized authority for their actions -- these gaps have often presented an acute dilemma for Presidents charged with defending the nation. Focusing on three periods in American history, this chapter sketches the historical evolution of how the political branches have responded.

First, the early republic. During this period, presidents responded to the authorization dilemma by seeking highly particularized authorization from the two other constitutional branches of government. Throughout the era, presidents’ claims …

Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson

Articles

In this section: Congress Enacts Sanctions Legislation Targeting Russia • United States and Qatar Sign Memorandum of Understanding over Terrorism Financing • Trump Reverses Certain Steps Toward Normalizing Relations with Cuba • United States Announces Plans to Withdraw from Paris Agreement on Climate Change • President Trump Issues Trade-Related Executive Orders and Memoranda • United States, Russia, and Jordan Sign Limited Ceasefire for Syria • Trump Administration Recertifies Iranian Compliance with JCPOA Notwithstanding Increasing Concern with Iranian Behavior

Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson

Articles

In this section: • United States Abstains on Security Council Resolution Criticizing Israeli Settlements • United States Sanctions Russian Individuals and Entities After Accusing Russian Government of Using Hacking to Interfere with U.S. Election Process; Congressional Committees and Intelligence and Law Enforcement Agencies Continue to Investigate President Trump’s Connections to Russian Officials • Second Circuit Overturns $655 Million Jury Verdict Against Palestine Liberation Organization and Palestinian Authority • New Legislation Seeks to Confirm Immunity of Artwork and Facilitate Cultural Exchange • United States Confronts China over Seizure of Unmanned Drone in the South China Sea • International Criminal Court Prosecutor …

Rescuing Policy And Terror Victims: A Concerted Approach To The Ransom Dilemma, C. Elizabeth Bundy

Michigan Journal of International Law

Part I of this Note will analyze the current framework governing hostage situations to determine the permissibility of ransom payments under international law. Part II will examine the two dominant positions that have developed among states and identify the justifications and shortcomings of each. Part III will conclude, firstly, that for states to develop a multilateral approach to hostage situations, they must take the lead within their respective domestic spheres and, secondly, that the option to negotiate for ransomed release should be preserved as an essential tool for confronting terrorist organizations.

Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson

Articles

In this section: • U.S. Supreme Court Upholds Law Facilitating Compensation for Victims of Iranian Terrorism • Russia Argues Enhanced Military Presence in Europe Violates NATO-Russia Agreement; United States Criticizes Russian Military Maneuvers over the Baltic Sea as Inconsistent with Bilateral Treaty Governing Incidents at Sea • U.S. Secretary of State Determines ISIL Is Responsible for Genocide • United States Blocks Reappointment of WTO Appellate Body Member • U.S. Department of Defense Releases Report of Investigation Finding That October 2015 Air Strike on Doctors Without Borders Hospital in Kunduz, Afghanistan, Was Not a War Crime • United States Expands Air …

Identifying The Start Of Conflict: Conflict Recognition, Operational Realities And Accountability In The Post-9/11 World, Laurie R. Blank, Benjamin R. Farley

Michigan Journal of International Law

On December 19, 2008, the Convening Authority for the United States Military Commissions at Guantanamo Bay referred charges against Abd al-Rahim Hussein Muhammed Abdu Al-Nashiri for his role in the October 2000 bombing of the U.S.S. Cole. The charge sheet alleged that al-Nashiri committed several acts—including murder in violation of the law of war, perfidy, destruction of property—”in the context of and associated with armed conflict” on or about October 12, 2000 in connection with the bombing. At the time of the attack, the statement that the United States was engaged in an armed conflict would have been a surprise …

The Incitement Of Terrorism On The Internet: Legal Standards, Enforcement, And The Role Of The European Union, Ezekiel Rediker

Michigan Journal of International Law

Consider this sentence: “The Shining Path is a heroic organization.” Over the past thirty years, the Shining Path has waged a violent guerilla war against the Peruvian government, prompting the European Union to designate the group as a terrorist organization. In certain European countries, speech inciting or glorifying terrorist organizations is criminalized. As a result, citizens risk prosecution if they do not carefully limit what they say about the Shining Path, or other terrorist organizations. But where does free speech end and incitement to terrorism begin? The debate over free speech and incitement to terrorism is actively being played out …

Contemporary Practice Of The Untied States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson

Articles

In this section: • Iran Nuclear Framework Agreement Reached; Congress Seeks to Influence Negotiation • United States Lifts Some Cuba Restrictions and Explores the Possibility of Normalizing Relations • United States Responds to Alleged North Korean Cyber Attack on Sony Pictures Entertainment • Senate Select Committee on Intelligence Releases Executive Summary of Its Study of CIA’s Detention and Interrogation Program • President Obama Seeks Statutory Authorization for the Use of Military Force Against ISIL

Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson

Articles

In this section: United States Objects to Russia’s Continued Violations of Ukraine’s Territorial Sovereignty, Including by Convoys Purporting to Provide Humanitarian Aid • United States and Afghanistan Sign Bilateral Security Agreement • United States Announces “Changes and Confirmations” in Its Interpretation of the UNConvention Against Torture • United States and China Make Joint Announcement to Reduce Greenhouse Gas Emissions, Bolstering Multilateral Climate Change Negotiations • United States Deepens Its Engagement with ISIL Conflict • NATO Affirms that Cyber Attacks May Trigger Collective Defense Obligations

Defensive Force Against Non-State Actors: The State Of Play, Monica Hakimi

Articles

This article assesses the implications of the current Syria situation for the international law on the use of defensive force against non-State actors. The law in this area is highly unsettled, with multiple legal positions in play. After mapping the legal terrain, the article shows that the Syria situation accentuates three preexisting trends. First, the claim that international law absolutely prohibits the use of defensive force against non-State actors is increasingly difficult to sustain. States, on the whole, have supported the operation against the so-called Islamic State in Syria. Second, States still have not coalesced around a legal standard on …

What Will It Take? Terrorism, Mass Murder, Gang Violence, And Suicides: The American Way, Or Do We Strive For A Better Way?, Katherine L. Record, Lawrence O. Gostin

University of Michigan Journal of Law Reform

The assertion that access to firearms makes us safe, rather than increases the likelihood that oneself or a family member will die, is contradicted by a large body of evidence. Gunshots kill more than 30,000 Americans each year. Homicide accounts for approximately one-third of these deaths, with the remainder involving suicides and accidental gun discharges. In fact, firearms put us at greater risk of death than participating in war; in four months, as many Americans were shot dead in the United States as have died fighting in Iraq for an entire decade. Given these grim statistics, it would be reasonable …

Missing Mcveigh, Michael E. Tigar

Michigan Law Review

The bombing that killed at least 169 people became an event by which time was thereafter measured — at least in Oklahoma. Ninety minutes after the bombing, a state trooper arrested Timothy McVeigh on a traffic charge; within hours, he was linked to the bombing, and the legal process began. Terry Nichols, who had met McVeigh when they were in the army together, was arrested in Herington, Kansas, where he lived with his wife and daughter. The Tenth Circuit chief judge designated Richard Matsch, chief judge for the District of Colorado, to preside over the case. Judge Matsch came to …

Special Administrative Measures And The War On Terror: When Do Extreme Pretrial Detention Measures Offend The Constitution?, Andrew Dalack

Michigan Journal of Race and Law

Our criminal justice system is founded upon a belief that one is innocent until proven guilty. This belief is what foists the burden of proving a person’s guilt upon the government and belies a statutory presumption in favor of allowing a defendant to remain free pending trial at the federal level. Though there are certainly circumstances in which a federal magistrate judge may—and sometimes must—remand a defendant to jail pending trial, it is well-settled that pretrial detention itself inherently prejudices the quality of a person’s defense. In some cases, a defendant’s pretrial conditions become so onerous that they become punitive …

The Legality Of Deliberate Miranda Violations: How Two-Step National Security Interrogations Undermine Miranda And Destabilize Fifth Amendment Protections, Lee Ross Crain

Michigan Law Review

As part of the global “War on Terror,” federal agents intentionally delay issuing Miranda warnings to terrorism suspects during custodial interrogations. They delay the warnings presuming that unwarned suspects will more freely offer vital national security intelligence. After a suspect offers the information he has, agents administer Miranda warnings and attempt to elicit confessions that prosecutors can use at the suspect’s trial. No court has ruled on the constitutionality of this two-step national security interrogation process to determine whether admitting the second, warned confession is allowed under Miranda v. Arizona and its progeny. A fragmented Supreme Court examined two-step interrogations …

Beyond The Battlefield, Beyond Al Qaeda: The Destabilizing Legal Architecture Of Counterterrorism, Robert M. Chesney

Michigan Law Review

By the end of the first post-9/11 decade, the legal architecture associated with the U.S. government’s use of military detention and lethal force in the counterterrorism setting had come to seem relatively stable, supported by a remarkable degree of cross-branch and cross-party consensus (manifested by legislation, judicial decisions, and consistency of policy across two very different presidential administrations). That stability is certain to collapse during the second post-9/11 decade, however, thanks to the rapid erosion of two factors that have played a critical role in generating the recent appearance of consensus: the existence of an undisputed armed conflict in Afghanistan, …

Toward Comprehensive Reform Of America's Emergency Law Regime, Patrick A. Thronson

University of Michigan Journal of Law Reform

Unbenownst to most Americans, the United States is presently under thirty presidentially declared states of emergency. They confer vast powers on the Executive Branch, including the ability to financially incapacitate any person or organization in the United States, seize control of the nation's communications infrastructure, mobilize military forces, expand the permissible size of the military without congressional authorization, and extend tours of duty without consent from service personnel. Declared states of emergency may also activate Presidential Emergency Action Documents and other continuity-of-government procedures, which confer powers on the President-such as the unilateral suspension of habeas corpus-that appear fundamentally opposed to …

Trying Terrorism: Joint Criminal Enterprise, Material Support, And The Paradox Of International Criminal Law, Alexandra Link

Michigan Journal of International Law

This Note will examine theoretical problems in ICL and public international law by evaluating the practical implications of applying ICL sources to find criminal liability outside the narrow confines of the international tribunals. It will examine the problems posed by the conflicting standards of the Rome Statute and ICTY jurisprudence as a matter of customary international law, the failure of U.S. courts to effectively confront the contextual and doctrinal analysis necessary to determine the limitations of these sources, and the proper application of these sources to the issues raised in Hamdan II and Al Bahlul. Viewing ICL through the lens …

Reconceptualizing States Of Emergency Under International Human Rights Law: Theory, Legal Doctrine, And Politics, Scott P. Sheeran

Michigan Journal of International Law

States of emergency are today one of the most serious challenges to the implementation of international human rights law (IHRL). They have become common practice and are associated with severe human rights violations as evidenced by the Arab Spring. The international jurisprudence on states of emergency is inconsistent and divergent, and what now constitutes a public emergency is ubiquitous. This trend is underpinned by excessive judicial deference and abdication of the legal review of states' often dubious claims of a state of emergency. The legal regime, as positively expressed in international human rights treaties, does not adequately reflect the underlying …

Targeting And The Concept Of Intent, Jens David Ohlin

Michigan Journal of International Law

International law generally prohibits military forces from intentionally targeting civilians; this is the principle of distinction. In contrast, unintended collateral damage is permissible unless the anticipated civilian deaths outweigh the expected military advantage of the strike; this is the principle of proportionality. These cardinal targeting rules of international humanitarian law are generally assumed by military lawyers to be relatively well-settled. However, recent international tribunals applying this law in a string of little-noticed decisions have completely upended this understanding. Armed with criminal law principles from their own domestic systems — often civil law jurisdictions — prosecutors, judges and even scholars have …

Self-Defense Against Terrorists: The Meaning Of Armed Attack, Steven Ratner

Book Chapters

The last decade has witnessed increased recourse by states to military force to respond to terrorist attacks on their soil that have originated from abroad. A number of states -- including the United States -- have justified these military actions as lawful self-defense in response to an armed attack, as permitted under Article 51 of the United Nations Charter. These claims raise multiple interpretive questions about the meaning of "armed attack" under Article 51 and of the various options that are allowed in response to one. This essay explores the contemporary understanding of an "armed attack" in terms of an …

Security Council Resolution 1887 And The Quest For Nuclear Disarmament, Usman Ahmed, Raghav Thapar

Michigan Journal of International Law

Nuclear weapons pose an increased international threat to security in the modem era. Cheap transportation and the opening of national borders for trade have made it easy for nuclear materials to cross national boundaries. Informal networks have sprouted up, facilitating the proliferation and exchange of nuclear materials and the technology required to turn those materials into weapons. Advances in technology have made it easier to enrich uranium, instilling concerns of increased nuclear weapons proliferation. These changes in technology, the development of informal nuclear networks, and lax security in safeguarding weapons by states such as Russia and Pakistan have fueled global …

No Cause Of Action: Video Surveillance In New York City, Olivia J. Greer

Michigan Telecommunications & Technology Law Review

In 2010, New York City Police Commissioner Raymond Kelly announced a new network of video surveillance in the City. The new network would be able to prevent future terrorist attacks by identifying suspicious behavior before catastrophic events could take place. Kelly told reporters, "If we're looking for a person in a red jacket, we can call up all the red jackets filmed in the last 30 days," and "[w]e're beginning to use software that can identify suspicious objects or behaviors." Gothamist later made a witticism of Kelly's statement, remarking, "Note to terrorists: red jackets are not a good look for …

Detention Debates, Deborah N. Pearlstein

Michigan Law Review

Since the United States began detaining people in efforts it has characterized, with greater and lesser accuracy, as part of global counterterrorism operations, U.S. detention programs have spawned more than 200 different lawsuits producing 6 Supreme Court decisions, 4 major pieces of legislation, at least 7 executive orders across 2 presidential administrations, more than 100 books, 231 law review articles (counting only those with the word "Guantanamo" in the title), dozens of reports by nongovernmental organizations, and countless news and analysis articles from media outlets in and out of the mainstream. For those in the academic and policy communities who …

A Functional Approach To Targeting And Detention, Monica Hakimi

Articles

The international law governing when states may target to kill or preventively detain nonstate actors is in disarray. This Article puts much of the blame on the method that international law uses to answer that question. The method establishes different standards in four regulatory domains: (1) law enforcement, (2) emergency, (3) armed conflict for civilians, and (4) armed conflict for combatants. Because the legal standards vary, so too may substantive outcomes; decisionmakers must select the correct domain before determining whether targeting or detention is lawful. This Article argues that the "domain method" is practically unworkable and theoretically dubious. Practically, the …