National Security Law Commons^™

Optimal Liability For Terrorism, Darius N. Lakdawalla, Eric L. Talley

Faculty Scholarship

This paper analyzes the normative role for civil liability in aligning terrorism precaution incentives, when the perpetrators of terrorism are unreachable by courts or regulators. We consider the strategic interaction among targets, subsidiary victims, and terrorists within a sequential, game-theoretic model. The model reveals that, while an "optimal" liability regime indeed exists, its features appear at odds with conventional legal templates. For example, it frequently prescribes damages payments from seemingly unlikely defendants, directing them to seemingly unlikely plaintiffs. The challenge of introducing such a regime using existing tort law doctrines, therefore, is likely to be prohibitive. Instead, we argue, efficient …

Muslim Profiles Post-9/11: Is Racial Profiling An Effective Counterterrorist Measure And Does It Violate The Right To Be Free From Discrimination?, Bernard E. Harcourt

Faculty Scholarship

Racial profiling as a defensive counterterrorism measure necessarily implicates a rights trade-off: if effective, racial profiling limits the right of young Muslim men to be free from discrimination in order to promote the security and well-being of others. Proponents of racial profiling argue that it is based on simple statistical fact and represents just smart law enforcement. Opponents of racial profiling, like New York City police commissioner Raymond Kelly, say that it is dangerous and just nuts.

As a theoretical matter, both sides are partly right. Racial profiling in the context of counterterrorism measures may increase the detection of terrorist …

Issues In Article Iii Courts, Debra A. Livingston

Faculty Scholarship

Cases implicating classified information can pose difficult legal issues for Article III courts, and these issues may well grow more complicated and arise more frequently as the global war on terror continues. The manner in which these issues are resolved has profound implications for the national security, for the procedural rights of litigants, and for the public's ability to scrutinize legal proceedings. Indeed, the expanded use of secret evidence in Article III courts may raise questions about the very character of the courts themselves. Is there a point at which the demands placed upon these courts, pushing them in the …

Waging War Against Terror: An Essay For Sandy Levinson, Philip Chase Bobbitt

Faculty Scholarship

Wars are acts of State, and therefore there has never been a "war on terror." Of course states have fought terrorism, in many guises, for centuries. But a war on terror had to await the development of states – including virtual states like al Qaeda's global ummah – whose constitutional order was not confined to a particular territory or national group and for whom terror could therefore be a permanent state of international affairs, either sought in order to prevent persons within a state's control from resisting oppression by accessing global, empowering resources and networks, or suffered because other states …

Law And War: Individual Rights, Executive Authority, And Judicial Power In England During World War I , Rachel Vorspan

Faculty Scholarship

This Article examines the role of the English courts during World War I, particularly the judicial response to executive infringements on individual liberty. Focusing on the areas of detention, deportation, conscription, and confiscation of property, the Article revises the conventional depiction of the English judiciary during World War I as passive and peripheral. It argues that in four ways the judges were activist and energetic, both in advancing the government's war effort and in promoting their own policies and powers. First, they were judicial warriors, developing innovative legal strategies to legitimize detention and other governmental restrictions on personal. Second, they …

The Mosaic Theory, National Security, And The Freedom Of Information Act, David E. Pozen

Faculty Scholarship

This Note documents the evolution of the "mosaic theory" in Freedom of Information Act (FOIA) national security law and highlights its centrality in the post-9/11 landscape of information control. After years of doctrinal stasis and practical anonymity, federal agencies began asserting the theory more aggressively after 9/11, thereby testing the limits of executive secrecy and of judicial deference. Though essentially valid, the mosaic theory has been applied in ways that are unfalsifiable, in tension with the text and purpose of FOIA, and susceptible to abuse and overbreadth. This Note therefore argues, against precedent, for greater judicial scrutiny of mosaic theory …

Hamdi Meets Youngstown: Justice Jackson's Wartime Security Jurisprudence And The Detention Of Enemy Combatants, Sarah H. Cleveland

Faculty Scholarship

More than any Justice who has sat on the United States Supreme Court, Associate Justice Robert H. Jackson explained how our Eighteenth Century Constitution – that "Eighteenth-Century sketch of a government hoped for" – struggles both to preserve fundamental liberties and to protect the nation against fundamental threats. Drawing upon his collective experience as a solo practitioner with only one year of formal legal education at Albany Law School; government tax and antitrust lawyer, Solicitor General, and Attorney General in the Roosevelt Administration; Associate Justice to the Supreme Court; and Representative and Chief of Counsel for the United States at …

The Threat Of Smallpox: Eradicated But Not Erased: A Review Of The Fiscal, Logistical And Legal Obstacles Impacting The Phase I Vaccination Program, Holly L. Myers, Elin Gursky, Georges C. Benjamin, Christopher Gozdor, Michael Greenberger

Faculty Scholarship

Fears that terrorists may have the capabilities and intent to disseminate a variety of biologic agents has once again brought smallpox into the American consciousness. On December 13, 2002, recognizing that the global discontinuation of routine smallpox vaccination over two decades ago had left most Americans unprotected and vulnerable to the ravaging effects of the virus, the President announced a precautionary measure to begin vaccinating teams of emergency responders. The program commenced January 24, 2003. In the ensuing months, public health departments scrambled to meet the goal of vaccinating approximately 500,000 first responders, a protected phalanx that could quickly and …

Three Strikes And You're Outside The Constitution: Will The Guantanamo Bay Alien Detainees Be Granted Fundamental Due Process?, Michael Greenberger

Faculty Scholarship

The United States Supreme Court has agreed to take up its first case arising from the War on Terror by hearing the consolidated appeals of two groups of foreign aliens who are or who had been detained at the United States Guantanamo Bay Naval Base, Cuba: Rasul v. Bush (No. 03-334) and Al Odah v. United States (No. 03-343). The cases stem from the United States' capture of several hundred prisoners in Afghanistan and Pakistan and their subsequent imprisonment at Guantanamo Bay. The prison began operation in January 2002, and approximately 90 detainees have been freed up to this time, …

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

Faculty Scholarship

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 …

Is Criminal Justice A Casualty Of The Bush Administration's War On Terror?, Michael Greenberger

Faculty Scholarship

Relying on Article I Presidential War Powers, the Bush administration has employed many detention and law enforcement strategies in fighting the War on Terrorism that seemingly give short shrift to traditional constitutional protections. The first of these strategies will be subject to Supreme Court resolution by the end of this Term and concerns the Bush Administration tactic of unilaterally declaring U.S. citizens to be "enemy combatants," thereby subjecting them to incarceration in military prisons without any right to counsel, prior judicial process, or judicial review of this status. Another strategy employed on a widespread basis by the DOJ after September …

Race, Immigration, And The Department Of Homeland Security, Victor C. Romero

Faculty Scholarship

Despite the wisdom of separating the service and enforcement functions of our immigration bureau, the new tripartite system under the auspices of the Department of Homeland Security risks fueling the "immigrant Arab as terrorist" stereotype, rather than helping to re-establish the reality that noncitizen terrorists, like U.S. citizen ones, are a rare species.

Ambivalence About Treason, George P. Fletcher

Faculty Scholarship

Betrayal and disloyalty are grievous moral wrongs, yet today when the disloyal commit treason we seem reluctant to punish them. John Walker Lindh fought for the Taliban with full knowledge that it was engaged in hostilities against the United States. It should not have been so difficult to prove by two witnesses to the overt act, as the Constitution requires, that he adhered to the enemy giving them aid and comfort. Admittedly, there were legal problems about whether the Taliban as an indirect enemy in an undeclared war could qualify as the enemy in the constitutional sense. But there was …

From Violent Crime To Terrorism: The Changing Basis Of The Federal, State And Local Law Enforcement Dynamic, Daniel C. Richman

Faculty Scholarship

Two lines of questions dominate discussions about how the nation ought to respond at home to the new (or rather newly perceived) terrorist threat: How do we ensure that information about potential terrorist activities is effectively gathered, shared, and used? And how do we ensure that the Government neither abuses the investigative authority we give it, nor demands more authority than it needs? Each line can profitably be pursued in its own terms. Yet to keep the conversations separate is to miss seeing how the very process of creating an effective domestic intelligence network may introduce a salutary level of …

Decoupling 'Terrorist' From 'Immigrant': An Enhanced Role For The Federal Courts Post 9/11, Victor C. Romero

Faculty Scholarship

Since the terrorist attacks of September 11, 2001, Attorney General John Ashcroft has utilized the broad immigration power ceded to him by Congress to ferret out terrorists among noncitizens detained for minor immigration violations. Such a strategy provides the government two options: deport those who are not terrorists, and then prosecute others who are. While certainly efficient, using immigration courts and their less formal due process protections afforded noncitizens should trigger greater oversight and vigilance by the federal courts for at least four reasons: First, while the legitimate goal of immigration law enforcement is deportation, Ashcroft's true objective in targeting …

Noncitizen Students And Immigration Policy Post-9/11, Victor C. Romero

Faculty Scholarship

The purpose of this article is to describe the post-9/11 world for noncitizen students and scholars in light of recent federal legislation, specifically focusing on three laws: the USA-PATRIOT Act of 2001, the Border Commuter Student Act of 2002, and the proposed Capital Student Adjustment Act, currently pending in Congress. In all three, Congress is seen trying to walk the fine line between providing fair access to postsecondary education to noncitizen students and guarding against the possibility that such institutions are being used as a springboard for terrorist activity.

Computer Attacks On Critical National Infrastructure: A Use Of Force Invoking The Right Of Self-Defense, Eric Talbot Jensen

Faculty Scholarship

Computer networks create tremendously increased capabilities but also represent equally increased vulnerabilities. These vulnerabilites are especially acute in relation to potential attacks on critical national infrasturucture. This Article proposes that international law must evolve to recognize that attacks against a nation's critical national infrastructure from any source constitute a use of force. Such attacks, therefore, give the victim state the right to proportional self-defense - including anticipatory self-defense - even if the computer network attack is not an armed attack under Article 51 of the United Nations Charter. Due to the instantaneous nature of computer network attacks, the right to …

On Justice And War: Contradictions In The Proposed Military Tribunals, George P. Fletcher

Faculty Scholarship

The autumn of our anguish has passed, and we are still confused about how to describe the use of military force in Afghanistan. We are torn between using the language of justice and the language of war. Is this an attack by private individuals, a case of a single terrorist writ large? If the mass killings of September 11 are the crimes of individuals – Islamic fundamentalist versions of Timothy McVeigh – then we can think about arresting them and bringing them to "justice." The mantra of the Bush team, "bringing justice to them and them to justice," has seeped …

Meeting The Challenge Of Cyberterrorism: Defining The Military Role In A Democracy, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

The Commercial Activity Exception Under The Fsia, Personhood Under The Fifth Amendment And Jurisdiction Over Foreign States: A Partial Roadmap For The Supreme Court In The New Millennium, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

An "Effective Death Penalty"? Aedpa And Error Detection In Capital Cases, James S. Liebman

Faculty Scholarship

On June 11, 2001, the United States of America executed Timothy McVeigh. Dwarfed among the many unspeakable evils that Mr. McVeigh wrought is a speakable one I will address here, namely, the so-called Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").

Abbreviated, AEDPA's political history is as follows: In November 1994, the "Gingrich Congress" was elected on its Contract with America platform. One of the planks of that platform – one of the few that actually ended up passing Congress – was the so-called "Effective Death Penalty Act." That proposal had little to do with the death penalty and, …

Law And Military Interventions: Preserving Humanitarian Values In 21st Conflicts, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Special Operations Forces After Kosovo, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Critical National Infrastructure, Philip C. Bobbitt

Faculty Scholarship

It's great to be home. I look out in this group. It may be the Philosophical Society, but it really looks to me like coming home. I see the Weinbergs, the Rostows. I went to law school because of Chris Dougherty. I have a "family" out here that I very seldom get to see, so it's a real rreac for me to be here.

For about a year and a half now, I've lived in Washington. If you visit Washington, a place you must go is the Library of Congress. And if you go to the Library of Congress, you …

Kosovo And The Great Air Power Debate, Daniel L. Byman, Matthew C. Waxman

Faculty Scholarship

The following section provides an overview of how to think about air power and coercion, addressing several key limits of the current literature. We next examine NATO goals in Kosovo and the mixed success eventually achieved. Using that baseline, we explore various explanations for Belgrade's eventual capitulation and clarify how air power's role in each of them should be understood; we leave aside the issue of whether coercion was a proper strategy for addressing the Balkan crisis and focus instead on how to assess air power as a tool of that strategy. We conclude with recommendations for recasting the air …

The Law And The Human Target In Information Warfare: Cautions And Opportunities, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Siegecraft And Surrender: The Law And Strategy Of Cities And Targets, Matthew C. Waxman

Faculty Scholarship

The razing of Jericho; the sack of Magdeburg; the siege of Leningrad; the fire-bombing of Dresden. Ever since civilizations began organizing permanent economic settlements, cities and towns have occupied a central role in warfare and in our images of war." On almost every page of historical writings," remarked Grotius, "you may find accounts of the destruction of whole cities, or the leveling of walls to the ground, the devastation of fields, and conflagrations." A driving force behind the evolution and development of cities has been defense and security. As a result, how-ever, cities have become a primary target or object …

Organized Violence And The Future Of International Law: A Practitioner's View Of The Emerging Issues, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

The Police-Ization Of The Military, Charles J. Dunlap Jr.

Faculty Scholarship

This essay will briefly review the background of the use of the armed forces in a police capacity, discuss the growth of that role in the I980s and 1990s, and forecast an even greater expansion into that role in the near future due to the emerging threat of "catastrophic terrorism." It will contend that this increased reliance on military resources for policing is not in the interest of either the armed forces or the public. Finally, it will make some observations with a view towards minimizing the dangers of police-ization of the military while ensuring the Nation's public safety.

Preliminary Observations: Asymmetrical Warfare And The Western Mindset, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.