Law Commons^™

Fallibility + Unchecked Power = Trouble, C. Peter Erlinder

C. Peter Erlinder

No abstract provided.

Terrorism And The Rule Of Law: A Case Comment On Kartar Singh V. State Of Punjab, Aditya Swarup

Aditya Swarup

No abstract provided.

From Incitement To Indictment? Prosecuting Iran's President For Advocating Israel's Destruction And Piecing Together Incitement Law's Emerging Analytical Framework, Gregory S. Gordon

Gregory S. Gordon

On October 25, 2005, at an anti-Zionism conference in Tehran, Iran's President, Mahmoud Ahmadinejad, called for Israel to "be wiped off the face of the map" -- the first in a series of incendiary speeches arguably advocating liquidation of the Jewish state. Certain commentators argue that these speeches constitute direct and public incitement to commit genocide. This Article analyzes these arguments by examining the nature and scope of recent groundbreaking developments in incitement law arising from the Rwandan genocide prosecutions. For the first time in the legal literature, the Article pieces together an analytical framework based on principles derived from …

When The Immovable Object Meets The Unstoppable Force: Search And Seizure In The Age Of Terrorism, Anthony C. Coveny

Anthony C Coveny Ph.D.,J.D.,MA.

Abstract In 2001, the airborne attack on the World Trade Center, unlike any other in U.S. History, shook America to her core. In the process, the hand of government was strengthened at the expense of the constitutional liberties afforded by the Fourth Amendment. MacWade v. Kelly is just one more example of the increasing governmental interest in securing this nation from another terrorist attack, and in so doing, subjecting Americans to more “big brother” government. In MacWade, the New York Police Department faced down a 42 U.S.C 1983 challenge to its Container Inspection Program (CIP) in the name of security. …

Wartime Process: A Dialogue On Congressional Power To Remove Issues From The Federal Courts, John C. Yoo, Jesse Choper

John C Yoo

Many have long debated whether Congress may strip the federal courts completely of jurisdiction over certain classes of cases. Until the last few years, these debates met the very definition of academic. Aside from two statutes, Congress had never engaged in clear removal of cases from the Supreme Court or the lower federal courts. That changed with the Court's decision in Rasul v. Bush, which extended the federal writ of habeas corpus to alien enemy combatants detained at the Guantanamo Bay, Cuba Naval Station. In response to Rasul, Congress enacted the Detainee Treatment Act of 2005 (DTA), which forbade any …

Wartime Process: A Dialogue On Congressional Power To Remove Issues From The Federal Courts, John C. Yoo, Jesse Choper

Jesse H Choper

Many have long debated whether Congress may strip the federal courts completely of jurisdiction over certain classes of cases. Until the last few years, these debates met the very definition of academic. Aside from two statutes, Congress had never engaged in clear removal of cases from the Supreme Court or the lower federal courts. That changed with the Court's decision in Rasul v. Bush, which extended the federal writ of habeas corpus to alien enemy combatants detained at the Guantanamo Bay, Cuba Naval Station. In response to Rasul, Congress enacted the Detainee Treatment Act of 2005 (DTA), which forbade any …

Counterintuitive: Intelligence Operations And International Law, John C. Yoo, Glenn Sulmasy

John C Yoo

This essay addresses proposals for international regulation of intelligence gathering activities. We show that international law currently does not express any strong norms against intelligence gathering. We argue that international law is incapable of regulating such activities and proposals for change would prove counterproductive. Careful attention to the causes of war between rational nation-states shows that these efforts will have the highly undesirable result of making war more, rather than less, likely.

Strategic Planning For Combating Terrorism: A Critical Examination, Arsalan Suleman

Arsalan Suleman

This article engages in a thorough assessment of the Bush Administration's main security strategy documents related to combating terrorism, namely the 2002 and 2006 National Security Strategy documents, the 2003 National Strategy for Combating Terrorism, and the 2006 National Military Strategic Plan for the War on Terrorism. First, the article assesses the value and importance of strategy documents and the utility in analyzing them. Second, the strategies are analyzed based on the process by which they were authored, the structural elements of the strategy, and the strategy's content. Third, the article discusses the overall content of counter-terrorism strategy and makes …

Assessing The Legality Of Counterterrorism Measures Without Characterizing Them As Law Enforcement Or Military Action, Gregory E. Maggs

Gregory E. Maggs

My Article is called: “Assessing the Legality of Counterterrorism Measures without Characterizing them as Law Enforcement or Military Action.” In this article, I develop three theses:

First, I claim that disagreements about the legality of counterterrorism measures commonly stem from disagreements about whether to characterize the measures as law enforcement efforts or as military actions. Observers who see the measures as methods of controlling crime assess their lawfulness differently from those who see them as a form of warfare against terrorists because criminal law enforcement rules differ substantially from the laws of war. With many specific examples, I show that …

Entrapment And Terrorism, Dru Stevenson

Dru Stevenson

The thesis of this article is that the unique nature of terrorist crime requires a tweaking of the entrapment rules. The entrapment defense is our legal system’s primary mechanism for regulating government sting operations. I argue that sting operations and surveillance are conceptually distinct (or rival) methods of law enforcement, which compete for resource allocation. If an enforcement agency favors one method, it shifts resources away from the other. To the extent that we dislike panoptic government surveillance, we can steer enforcement agencies away from it by encouraging targeted stings; and we can achieve this, in part, by adapting the …

Snatch And Grab Ops: Justifying Extraterritorial Abduction, Gregory Mcneal, Brian Field

Greg McNeal

The United States government is actively engaged in a search for individuals believed to have killed American citizens and destroyed American property. As most of these individuals live openly in foreign states hostile to the United States, achieving extradition often proves impossible. Despite repeated diplomatic efforts to secure the transfer of these terrorists to America, many continue to operate in foreign states under the protection of the host country's continued denial of the terrorist's presence within their borders. The problem of bringing these individuals to justice is further complicated by the fact that the United States is rarely able to …

Law, Morality, And Economics: Integrating Moral Constraints With Economic Analysis Of Law , Barak Medina, Eyal Zamir

Barak Medina

Economic analysis of law is a powerful analytical methodology. However, as a purely consequentialist approach, which determines the desirability of acts and rules solely by assessing the goodness of their outcomes, standard cost-benefit analysis (CBA) is normatively objectionable. Thus, for example, it presumably approves the deliberate killing of one innocent person to save the lives of two, and the breaking of a promise whenever it would produce slightly more net benefit than keeping it.

Moderate deontology prioritizes such things as autonomy, basic liberties, truth telling, and promise keeping over the promotion of good outcomes. It holds that there are constraints …

Assessing The Legality Of Counterterrorism Measures Without Characterizing Them As Law Enforcement Or Military Action, Gregory E. Maggs

Gregory E. Maggs

My Article is called: “Assessing the Legality of Counterterrorism Measures without Characterizing them as Law Enforcement or Military Action.” In this article, I develop three theses:

First, I claim that disagreements about the legality of counterterrorism measures commonly stem from disagreements about whether to characterize the measures as law enforcement efforts or as military actions. Observers who see the measures as methods of controlling crime assess their lawfulness differently from those who see them as a form of warfare against terrorists because criminal law enforcement rules differ substantially from the laws of war. With many specific examples, I show that …

What Is Distinctive About Terrorism And Anti-Terrorism Law?, Matthew S. R. Palmer

The Hon Justice Matthew Palmer

Criminal offending and terrorist offending are similar in quality – the acts which constitute such offending are similar, and should be subject to similar levels of protection of civil and political rights. This is how a democracy should respond to domestic terror threats. To the extent that we are particularly concerned about the motivation of terrorists in challenging the very maintenance of public order by a state, we should reflect that concern in the penalties we impose on such proven offending, not in giving in to the temptation of lower burdens of proof of the existence of the offending or …

Usa Patriot Act: The Impact Of Usa Patriot Act On American Society: An Evidence Based Assessment, Kam C. Wong

Kam C. Wong

No abstract provided.

Border Vigilantism And Comprehensive Immigration Reform, Christopher J. Walker

Christopher J. Walker

While many actors and conditions contribute to the problems at the border, one set of actors has been unexplainably missing from the literature and policy analysis: border vigilantes. These vigilantes have painted the border as a dangerous locus of criminal and terrorist activity, necessitating concerned citizen sentinels. They have blitzed the public with portrayals about the number of migrants crossing the border illegally and the need for law enforcement to increase border protection. Their message is powerful because they back their rhetoric with action: these individuals camp out near popular desert border-crossing points, document the rate of undocumented migration, and …

Counterproductive And Counterintuitive Counterterrorism: The Post-September 11 Treatment Of Refugees And Asylum Seekers, Marisa Cianciarulo

Marisa S. Cianciarulo

This Article critiques U.S. counterterrorism measures that directly target refugees and asylum-seekers. The United States currently offers protection to individuals and families fleeing persecution through two programs: the overseas refugee resettlement program (available to refugees residing outside the United States) and the asylum system (available to those who apply for refugee protection on U.S. soil). Almost immediately after the September 11 terrorist attacks, the United States implemented a refugee resettlement moratorium that resulted in lengthy delays and the failure to resettle thousands of refugees previously cleared to enter the United States. Several years later, on May 11, 2005, Congress passed …

Tax And Terrorism: A New Partnership?, Michelle Gallant

Michelle Gallant

The global chase for terrorist assets has shed light on a link between tax and terrorism. Tax havens have been associated with terrorist finance, identified as potential centres for filtrating terrorist assets and for enabling the cross-border movement of the resources destined for terrorist enterprises. Complex multi-jurisdictional financial transactions have become the venues for the merger of terrorist finance with other mobile capital, its criminally ordained purpose hidden midst the convolutions of international tax and related transactions.

To many the mechanics of tax is an inaccessible subject. It consists of a complex matrix of laws best left to the professional …

Military Commissions Act Of 2006, Arsalan M. Suleman

Arsalan Suleman

On October 17, 2006, President Bush signed into law the Military Commissions Act of 2006 (MCA). Congress passed the MCA to authorize the trial by military commissions of detained terrorism suspects after the Supreme Court's decision in Hamdan v. Rumsfeld invalidated the military commissions previously established pursuant to a 2001 military order from President Bush. The MCA adds chapter 47A to title 10 of the U.S. Code to give statutory authorization for the military commissions. This Recent Development explores some of the more controversial aspects of the MCA, especially those sections that respond to the Court's Hamdan decision. The note …

Executive Power V. International Law, John C. Yoo, Robert J. Delahunty

John C Yoo

Critics of the Bush administration's conduct of the war on terrorism and the wars in Afghanistan and Iraq have made the claim that the President cannot order conduct that is inconsistent with international law. Not only is the argument under-theorized, it runs counter to the best reading of the constitutional text, structure, and the history of American practice. A careful examination of the constitutional text, for example, shows that international law that does not take the form of a treaty or other authoritative adoption by the political branches will not enjoy supremacy effect. If international law cannot claim the status …