National Security Law Commons^™

The President, Congress And The Security Council: Counterterrorism And The Use Of Force Through The Internationalist Lens, Margaret E. Mcguiness

Faculty Publications

(Excerpt)

This symposium is focused on the powers of the U.S. presidency, a topic that typically implies questions of constitutional law. More narrowly, the topic of presidential powers in the area of counterterrorism typically raises questions of how the Constitution addresses the shared war powers of the President and Congress. U.S. legal scholars have generally not framed the question of presidential power to use force against transnational terrorist groups as one of international law or international institutions. Rather, the separation of powers question has focused on historical and functional views of the President's war powers and whether and to what …

Exceptional Engagement: Protocol I And A World United Against Terrorism, Michael A. Newton

Vanderbilt Law School Faculty Publications

This article challenges the prevailing view that U.S. "exceptionalism" provides the strongest narrative for the U.S. rejection of Additional Protocol I to the 1949 Geneva Conventions. The United States chose not to adopt the Protocol in the face of intensive international criticism because of its policy conclusions that the text contained overly expansive provisions resulting from politicized pressure to accord protection to terrorists who elected to conduct hostile military operations outside the established legal framework. The United States concluded that the commingling of the regime criminalizing terrorist acts with the jus in bello rules of humanitarian law would be untenable …

In The Sweat Box: A Historical Perspective On The Detention Of Material Witnesses, Carolyn B. Ramsey

Publications

After the September 11 terrorist attacks, the Justice Department detained scores of allegedly suspicious persons under a federal material witness statute--a tactic that provoked a great deal of controversy. Most critics assume that the abuse of material witness laws is a new development. Yet, rather than being transformed by the War on Terror, the detention of material witnesses is a coercive strategy that police officers across the nation have used since the nineteenth century to build cases against suspects. Fears of extraordinary violence or social breakdown played at most an indirect role in its advent and growth. Rather, it has …

The Internet's Public Domain: Access To Government Information On The Internet, Susan Nevelow Mart

Publications

This article surveys the types and amounts of information that have been removed from the Internet since September 11th. Information has been removed in the name of national security as well as for reasons of seeming political expediency. After discussing the bases of some of the rationales for removing the information, and the legal underpinnings of continued access, the article suggests several forms of advocacy that could be used to return the information to the public's domain.

House Of Wisdom Or A House Of Cards? Why Teaching Islam In U.S. Foreign Detention Facilities Violates The Establishment Clause, Scott Thompson

Publications

In an attempt to erase Islamic-fundamentalist sentiments held by detainees apprehended in the course of the "war on terror," the United States government began teaching and preaching a more moderate version of the Qur'an and Islam to detainees in Iraq. One such detention program in Iraq was dubbed the House of Wisdom. But the wisdom of such a practice is highly suspect--both because it likely runs afoul of the Establishment Clause of the First Amendment and because it may be doing more harm than good to the American effort to defuse Islamic-extremism and anti-American sentiment. This Article examines the practice …

Surveillance And The Political Value Of Privacy, Benjamin J. Goold

All Faculty Publications

The steady expansion in the use of surveillance technologies by the state and private sector represents a substantial threat to the privacy of ordinary individuals. Yet despite the best efforts of civil libertarians, many members of the public still struggle to understand why privacy is valuable and deserves to be protected as a basic right. In part, this is a result of the inherent complexity of the idea of privacy, but it is also due a tendency on the part of privacy advocates to focus on the individual - as opposed to the social and political dimensions - of privacy. …

Police And National Security: American Local Law Enforcement And Counter-Terrorism After 9/11, Matthew C. Waxman

Faculty Scholarship

This article examines three national security law challenges resulting from greater involvement of state and local police agencies in protecting national security, especially in combating terrorism: organizational challenges, accountability challenges, and institutional tensions with traditional local police functions. Each threatens the balance of security and civil liberties.

United Nations Collective Security And The United States Security Guarantee In An Age Of Rising Multipolarity: The Security Council As The Talking Shop Of The Nations, Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

This essay considers the respective roles of the United Nations and the United States in a world of rising multipolarity and rising new (or old) Great Powers. It asks why UN collective security as a concept persists, despite the well-known failures, both practical and theoretical, and why it remains anchored to the UN Security Council. The persistence is owed, according to the essay, to the fact of a parallel US security guarantee that offers much of the world (in descending degrees starting with NATO and close US allies such as Japan, but even extending to non-allies and even enemies who …

The Law Of Armed Conflict And Detention Operations In Afghanistan, Matthew C. Waxman

Faculty Scholarship

In reflecting on the arc of US and coalition detention operations in Afghanistan, three key issues related to the law of armed conflict stand out: one substantive, one procedural and one policy. The substantive matter – what are the minimum baseline treatment standards required as a matter of international law? – has clarified significantly during the course of operations there, largely as a result of the US Supreme Court's holding in Hamdan v. Rumsfeld. The procedural matter – what adjudicative processes does international law require for determining who may be detained? – eludes consensus and has become more controversial …

Jupiter As Everyman: Michael Reisman And The Scholar As Teacher, James E. Baker

Georgetown Law Faculty Publications and Other Works

These are Chief Judge Baker’s remarks reflecting on the scholarship of Professor Michael Reisman in the field of national security law. Chief Judge Baker comments that Professor Reisman is a prolific writer and Scholar-Teacher dedicated to the study of force, minimization of suffering, and the advancement of human dignity and the law. He discusses how Professor Reisman’s work is distinctive in that it identifies and incorporates the critical influence of process, both formal and informal, in decisionmaking, which sometimes overshadows substance.

Human Dignity, Humiliation, And Torture, David Luban

Georgetown Law Faculty Publications and Other Works

Modern human rights instruments ground human rights in the concept of human dignity, without providing an underlying theory of human dignity. This paper examines the central importance of human dignity, understood as not humiliating people, in traditional Jewish ethics. It employs this conception of human dignity to examine and criticize U.S. use of humiliation tactics and torture in the interrogation of terrorism suspects.

Roles, Missions,And Equipment: Military Lessons From Experience In This Decade, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Towards A Cyberspace Legal Regime In The Twenty-First Century: Considerations For American Cyber-Warriors, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Detainee Transfers After Munaf: Executive Deference And The Convention Against Torture, Jeffrey H. Fisher

Georgia Law Review

This Note discusses the terrorist detainee transfer process and examines the level of deference courts should give the Executive Branch in determining whether a detainee could be tortured in a transferee country. In Munaf v. Geren, the Supreme Court suggested that the judicial branch is ill- suited to question the Executive's transfer determinations. Nevertheless, it did not definitively preclude judicial review of transfer determinations under the Convention Against Torture and left open the possibility of stringent court scrutiny in a "more extreme case." This Note proposes a case-by-case balancing test to determine the appropriate level of Executive deference. Courts should …

Legislating Clear-Statement Regimes In National-Security Law, Jonathan F. Mitchell

Georgia Law Review

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 its own amendment or repeal of its "exclusive means"provision before authorizing 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 Bush Administration inferred congressional "authorization"for …