National Security Law Commons^™

Judicial Foreign Relations Authority After 9/11, Martin S. Flaherty

NYLS Law Review

No abstract provided.

Efficiency In Bello And Ad Bellum: Making The Use Of Force Too Easy?, Kenneth Anderson

Contributions to Books

This article criticizes a widely asserted claim that drones make the resort to force and violence — war — “too easy.” Attractive on the surface to many, this article says that “too easy” is not a coherent notion as applied in war. The “too easy” argument comes in two forms, a moral argument and a maximization of social welfare argument. The maximization of social welfare version (on which the article focuses) frames “too easy” as a matter of creating an “inefficient” level of disincentive to use of force on account of insufficient risks to one’s own forces in so doing …

The First Amendment’S Borders: The Place Of Holder V. Humanitarian Law Project In First Amendment Doctrine, David Cole

Georgetown Law Faculty Publications and Other Works

In Holder v. Humanitarian Law Project, the Supreme Court’s first decision pitting First Amendment rights against national security interests since the terrorist attacks of September 11, 2001, the Court appears to have radically departed from some of the First Amendment’s most basic principles, including the maxims that speech may not be penalized because of its viewpoint, that even speech advocating crime deserves protection until it constitutes incitement, and that political association is constitutionally protected absent specific intent to further a group’s illegal ends. These principles lie at the core of our political and democratic freedoms, yet Humanitarian Law Project …

Technological Leap, Statutory Gap, And Constitutional Abyss: Remote Biometric Identification Comes Of Age, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

Federal interest in using facial recognition technology (“FRT”) to collect, analyze, and use biometric information is rapidly growing. Despite the swift movement of agencies and contractors into this realm, however, Congress has been virtually silent on the current and potential uses of FRT. No laws directly address facial recognition—much less the pairing of facial recognition with video surveillance—in criminal law. Limits placed on the collection of personally identifiable information, moreover, do not apply. The absence of a statutory framework is a cause for concern. FRT represents the first of a series of next generation biometrics, such as hand geometry, iris, …

Train Wreck: The U.S. Violation Of The Chemical Weapons Convention, David A. Koplow

Georgetown Law Faculty Publications and Other Works

The 1993 Chemical Weapons Convention (CWC) is one of the most important multilateral arms control instruments; it requires its 188 parties to refrain from producing, acquiring, retaining or using chemical weapons (CW) and to destroy their existing CW stockpiles by a fixed date. The United States and Russia declared the possession of the world’s largest CW inventories and have been working assiduously to incinerate, chemically neutralize or otherwise dispose of their respective caches. Unfortunately, neither country met the treaty’s April 29, 2012 final, non-extendable deadline. The United States managed to destroy 90% of its CW stocks on time, but under …

National Security In The Information Age, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

The information environment has been changing right along with the broader security environment. Today, the information environment connects almost everyone, almost everywhere, almost instantaneously. The media environment has become global, and there’s no longer such thing as “the news cycle” —everything is 24/7. Barriers between US and global publics have virtual disappeared: Everything and anything can “go viral” instantly, and it’s no longer possible to say one thing to a US audience and another thing to a foreign audience and assume no one will ever set the statements side by side. The Pakistani military has a very clear idea of …

Assessing The Impeachment Of President Bill Clinton From A Post 9/11 Perspective, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

The impeachment of President Clinton was more a circus than a serious effort to remove the President of the United States. The reason is simple: Few people--in the Congress or the country--wanted to remove him or believed the impeachment effort would actually result in his removal. Instead, it was a partisan political effort to embarrass Clinton and "send a message" of disapproval. Congress was attaching a "scarlet letter." But this was an indulgence that posed considerable danger that few in Congress considered. In particular, few tried to assess the potential impact this use of the process would have on the …

Where Liberty Lies: Civil Society And Individual Rights After 9/11, David Cole

Georgetown Law Faculty Publications and Other Works

Had someone told you, on September 11, 2001, that the United States would not be able to do whatever it wanted in response to the terrorist attacks of that day, you might well have questioned their sanity. The United States was the most powerful country in the world, and had the world’s sympathy in the immediate aftermath of the attacks. Who would stop it? Al Qaeda had few friends beyond the Taliban. As a historical matter, Congress and the courts had virtually always deferred to the executive in such times of crisis. And the American polity was unlikely to object …

Strange Bedfellows: The Convergence Of Sovereignty-Limiting Doctrines In Counterterrorist And Human Rights Discourse, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

It is hard to imagine two groups with less in common than national security hawks and human rights activists. They represent different cultures with different views on the use of force, the role of rights, and the constraining power of international law. Yet despite their differences, the two groups seem to be converging on an understanding of state sovereignty as limited and subject to de facto waiver—an understanding that appears to legitimize military inter­ventions even in the absence of state consent and Security Council authorization.

This convergence is reached via different routes in each community: for the national security community, …

Due Process In American Military Tribunals After September 11, 2001, Gary Shaw

Touro Law Review

The Authorization for Use of Military Force ("AUMF") provides broad powers for a president after September 11, 2001. President Bush, under the AUMF, claimed he had the power to hold "enemy combatants" without due process. This gave rise to two questions that the article addresses: "Could they be held indefinitely without charges or proceedings being initiated? If proceedings had to be initiated, what process was due to the defendants?"

Identification Requirements And Policy In Alternative Remittance : A Measure Of Legislative Adherence, Timothy J. Smith

Theses : Honours

Money laundering is a persistent threat to the economic viability of every nation. However the intent behind this behaviour does not always converge with the criminality of the act. A study of 395 international university students in Australia demonstrated a prominent cultural and regional norm in South Asia to use untraceable ‘informal’ remittance systems. Under Australian legislation, the use of a non-compliant alternative or informal value transfer system (IVTS) is an act that predicates the laundering of money regardless of intent. Yet in line with a clear cultural proclivity and trust in money transfer businesses, it is evident that many …

The Logic Of Terrorism, F.E. Guerra-Pujol

Barry Law Review

No abstract provided.

The United States' Enhanced Impunity For Its International Obligations: The Continued Unlawful Treatment Of Captives And Detainees Following The Attack Of September 11, 2001, David Brennan

Barry Law Review

No abstract provided.

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 …

Ten Years After 9/11: The Changing Terrorist Threat, Kenneth Anderson, Michael Leiter, John Carlin, Ivan Fong, Daniel Marcus, Stephen Vladeck

Presentations

On September 8, 2011, the American University National Security Law Brief and the Law and Government Program at American University’s Washington College of Law hosted a candid discussion on the changes throughout the American legal system in the 10 years since the tragic September 11th attacks. The event featured a keynote address from Michael Leiter, Director of the National Counterterrorism Center from 2007-2011, followed by a panel discussion with John Carlin, Principal Deputy to the Assistant Attorney General of the Department of Justice’s National Security Division; Ivan Fong, General Counsel at the Department of Homeland Security; Stephen Vladeck, Professor of …

Bring In The Nerds: Secrecy, National Security, And The Creation Of International Intellectual Property Law, David S. Levine

Cardozo Arts & Entertainment Law Journal

The negotiations of the international Anti-Counterfeiting Trade Agreement and Trans Pacific Partnership Agreement have been conducted largely in secret, elevating intellectual property piracy to the level of national security concerns for purposes of accessing information through the Freedom of Information Act (FOIA). However, the level of actual secrecy has been tiered, with corporate interests enjoying far more access to negotiation information than the general public. At the same time, similar intellectual property issues were negotiated in the relative transparency of Congress' debate over the Stop Online Piracy Act and PROTECT IP Act, allowing for much greater public involvement. With national …

National Security Federalism In The Age Of Terror, Matthew C. Waxman

Faculty Scholarship

National security law scholarship tends to focus on the balancing of security and liberty, and the overwhelming bulk of that scholarship is about such balancing on the horizontal axis among branches at the federal level. This Article challenges that standard focus by supplementing it with an account of the vertical axis and the emergent, post-9/11 role of state and local government in American national security law and policy. It argues for a federalism frame that emphasizes vertical intergovernmental arrangements for promoting and mediating a dense array of policy values over the long term. This federalism frame helps in understanding the …

Adhering To Law And Values Against Terrorism, Mary Ellen O'Connell

Journal Articles

The thesis of this article was inspired by the remarks of John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism, at Harvard Law School on September 16, 2011. Brennan said: “I've developed a profound appreciation for the role that our values, especially the rule of law, play in keeping our country safe. It's an appreciation, of course, understood by President Obama.... That is what I want to talk about this evening—how we have strengthened, and continue to strengthen, our national security by adhering to our values and our laws.”

Brennan's position is backed up by considerable data …

Carlos Figueroa On State Power And Democracy: Before And During The Presidency Of George W. Bush. By Andrew Kolin. New York, Ny: Palgrave Macmillan, 2011. 251pp., Carlos Figueroa

Human Rights & Human Welfare

A review of:

State Power and Democracy: Before and During the Presidency of George W. Bush. By Andrew Kolin. New York, NY: Palgrave Macmillan, 2011. 251pp.

A Tale Of Two Brothers: The Impact Of The Khadr Cases On Canadian Anti-Terrorism Law, Robert Currie

Articles, Book Chapters, & Popular Press

After something of a slow start, Canada’s post-9/11 terrorism laws have seen a fair amount of traffic over the last several years, and many of these prosecutions were high-profile in both the public and the legal senses. The case of the “Toronto 18” was well-chewed over by the press, coverage oscillating between grim amusement at the apparent incompetence of some of the accused and the sobering danger presented by others. The Supreme Court of Canada recently granted leave to appeal in the cases of Momin Khawaja, who was convicted for various terrorist activities carried out within and outside Canada, and …

A Whole Lot Of Substance Or A Whole Lot Of Rhetoric? A Perspective On A Whole-Of-Government Approach To Security Challenges, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Responses To The Five Questions, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

The Consequences Of A "War" Paradigm For Counterterrorism: What Impact On Basic Rights And Values?, Laurie R. Blank

Georgia Law Review

Policy makers have used the rhetoric of "war"
throughout the past century to describe a major
governmental or societal effort to combat an evil that
threatens society, national security or other communal

good. It is both a rhetorical tool and a resource
mobilization, and above all a coalescing of authority to
meet the challenge, whether poverty, drugs or-most
recently-terrorism. Soon after 9/11 made al Qaeda a
household word, the Bush Administration characterized
U.S. efforts to defeat al Qaeda as the "War on Terror."
Here, however, the terminology of "war" goes far beyond
rhetoric, resource re-allocation and centralizing of
authority. When …

Ethical Issues Of The Practice Of National Security Law: Some Observations, Charles J. Dunlap

Faculty Scholarship

No abstract provided.