National Security Law Commons^™

Do Boumediene Rights Expire?, Andrew Kent

Faculty Scholarship

In 2008, Guantanamo detainees won a landmark victory in Boumediene v. Bush, which held that the Congress and the President could not prevent the detainees from accessing the courts to seek release via habeas corpus. The Court decided that persons claiming to be innocent civilians deserved a day in court, even though they were noncitizens held by the U.S. military as enemy combatants on foreign territory. The Court applied a fact-specific test that granted habeas rights to noncitizens outside the United States only when a balance of factors — including citizenship, enemy status, the nature of status review procedures, the …

Mission Creep In National Security Law, Fletcher N. Baldwin Jr., Daniel Ryan Kosloskey

West Virginia Law Review

No abstract provided.

A Legal Framework For Targeted Killing, Monica Hakimi, A. Guiora

Book Chapters

I agree with much of what Professor Amos Guiora says, but I disagree with the method he uses to get there. And I believe the method matters. Guiora assesses targeting operations under an "active self-defense" paradigm, with elements from both the jus ad bellum (the law governing the use of force) and the jus in bello (the law governing the conduct of hostilities). Under Guiora's paradigm. a state may target terrorism suspects in anticipatory self-defense if: (I) targeting is proportional to their threat; (2) collateral damage is minimized; (3) alternatives to targeting are infeasible; and (4) military necessity justifies the …

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 …

More Than An Assertion: How United States V. Pulungan Nudged The Directorate Of Defense Trade Controls Toward Increased Transparency, Cody Jones

Oklahoma Law Review

No abstract provided.

Responses To The Five Questions, John Hursh

William Mitchell Law Review

No abstract provided.

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

William Mitchell Law Review

No abstract provided.

Responses To The Five Questions, Harvey Rishikof, Bernard Horowitz

William Mitchell Law Review

No abstract provided.

Responses To The Five Questions, Norman Abrams

William Mitchell Law Review

No abstract provided.

Judicial Formalism And The State Secrets Privilege, Sudha Setty

William Mitchell Law Review

No abstract provided.

Secrecy, Transparency, And National Security, Lawrence Friedman, Victor Hansen

William Mitchell Law Review

No abstract provided.

Targeted Strikes: The Consequences Of Blurring The Armed Conflict And Self-Defense Justifications, Laurie R. Blank

William Mitchell Law Review

No abstract provided.

Uneasy Neighbors: Comparative American And Canadian Counter-Terrorism, Kent Roach

William Mitchell Law Review

No abstract provided.

Understanding The Exceptional And Dynamic Nature Of Boumediene Rights To Court Access, Andrew Kent

Faculty Scholarship

This short piece replies to Professor Steve Vladeck's comments on my essay 'Do Boumediene Rights Expire?' 161 U. Pa. L. Rev. Pennumbra 20 (2012), available at http://ssrn.com/abstract=2166103. In this reply, I further develop the argument that Boumediene rights to court access may have expired for those Guantanamo detainees determined through habeas litigation to be enemy fighters; and whether these judicially-confirmed enemy fighters have continuing rights court access under Boumediene goes to the federal courts' subject matter jurisdiction, meaning that the Obama administration's concession of continued court access is inoperative and federal courts must sua sponte raise and decide the issue.

Sow What You Reap? Using Predator And Reaper Drones To Carry Out Assassinations Or Targeted Killings Of Suspected Islamic Terrorists, Thomas M. Mcdonnell

Elisabeth Haub School of Law Faculty Publications

This article explores whether targeted killing of suspected Islamist terrorists comports with international law generally, whether any special rules apply in so-called “failed states,” and whether deploying attack drones poses special risks for the civilian population, for humanitarian and human rights law, and for the struggle against terrorism. Part I of this article discusses the Predator Drone and its upgraded version Predator B, the Reaper, and analyzes their technological capabilities and innovations. Part II discusses international humanitarian law and international human rights law as applied to a state’s targeting and killing an individual inside or outside armed conflict or in …

Beyond War: Bin Laden, Escobar, And The Justification Of Targeted Killing, Luis E. Chiesa, Alexander K.A. Greenawalt

Elisabeth Haub School of Law Faculty Publications

Using the May 2011 killing of Osama bin Laden as a case study, this Article contributes to the debate on targeted killing in two distinct ways, each of which has the result of downplaying the centrality of international humanitarian law (IHL) as the decisive source of justification for targeted killings.

First, we argue that the IHL rules governing the killing of combatants in wartime should be understood to apply more strictly in cases involving the targeting of single individuals, particularly when the targeting occurs against nonparadigmatic combatants outside the traditional battlefield. As applied to the bin Laden killing, we argue …

Mission Creep In National Security Law, Fletcher N. Baldwin Jr., Daniel R. Koslosky

UF Law Faculty Publications

Many anti-terrorism measures are enacted with broad public support. There is often a general willingness on the part of the public to accept greater civil liberties deprivations in the face of a specific threat, or otherwise in times of general crisis, than would otherwise be the case. Sweeping anti-terrorism legislation is frequently crafted in reaction to the presence, or perceived presence, of immense, imminent danger. The medium and long-term consequences of the legislation may not fully be comprehended when political leaders and policymakers take swift action in the face strong public pressure in light of a recent terrorist attack or …

Disclosure’S Effects: Wikileaks And Transparency, Mark Fenster

UF Law Faculty Publications

Constitutional, criminal, and administrative laws regulating government transparency, and the theories that support them, rest on the assumption that the disclosure of information has transformative effects: disclosure can inform, enlighten, and energize the public, or it can create great harm and stymie government operations. To resolve disputes over difficult cases, transparency laws and theories typically balance disclosure’s beneficial effects against its harmful ones—what I have described as transparency’s balance. WikiLeaks and its vigilante approach to massive document leaks challenge the underlying assumption about disclosure’s effects in two ways. First, WikiLeaks’ ability to receive and distribute leaked information cheaply, quickly, and …

Preventing Atoms For Peace From Becoming Atoms Of Terror: The National Environmental Policy Act Is Not A Vehicle For Addressing Terrorism, David D. Leege

Catholic University Law Review

No abstract provided.

The End Of Forgetting And "Administrative Rights" To Our Online Personas, Jamie R. Lund

IP Theory

No abstract provided.

Assassination Or Targeted Killings After 9/11, John Yoo

NYLS Law Review

No abstract provided.

Islam In The (Inter)National, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

Islam, Muslims, and Islamic law have become an intense American pre-occupation since September 11, 2001. Since then, much literature has been written in academia and public culture alike, deciphering the Muslim and the Islamic, bestsellers sold, careers made, and expertise claimed, solicited, and generously offered.

Unsurprisingly, another type of literature coincided with the rise of the literature on Islam and the Islamic, namely, the one on national security. Sometimes, this literature paralleled and intersected with that on the Islamic, with both fields claiming the same experts, though for the most part, the latter commanded its own independent list of bestsellers, …

Stoney Road Out Of Eden: The Struggle To Recover Insurance For Armenian Genocide Deaths And Its Implications For The Future Of State Authority, Contract Rights, And Human Rights, Jeffrey W. Stempel, Sarig Armenian, David Mcclure

Scholarly Works

The Armenian Genocide during the waning days of the Ottoman Empire continues to represent one of history’s underappreciated atrocities. Comparatively few people even know about the 1.5 million deaths or the government-sponsored extermination attempt that provided Hitler with a blueprint for the Nazi Holocaust. Unlike the Holocaust, however, there was never any accounting demanded of those responsible for the Armenian Genocide. In the aftermath of both tragedies, insurers seized upon the resulting disarray and victimization to deny life insurance benefits owed as a result of the killings. American-based litigation to vindicate rights under the Armenian polices faced substantial legal and …

Post-9/11 Lawyers, Trevor C. W. Farrow

Articles & Book Chapters

Based on notes made by the author during a visit to the World Trade Center site in lower Manhattan.

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.

Judicial Formalism And The State Secrets Privilege, Sudha Setty

Faculty Scholarship

Congress has, in the last few years, toyed with the idea of attempting to rein in the executive’s increasing reliance on the state secrets privilege as a means of escaping the possibility of accountability. The Author examines one high-profile case, that of Binyam Mohamed and other plaintiffs claiming that they had been subject to extraordinary rendition, torture, and prolonged detention. The Mohamed litigation offers evidence of a disturbing trend of U.S. courts retreating to formalistic reasoning to extend unwarranted deference to the executive branch in security-related contexts. In this essay the Author limits her analysis to the recent jurisprudence surrounding …

The Rise Of National Security Secrets, Sudha Setty

Faculty Scholarship

Professor Aziz Rana urges a broad and populist reconsideration of the idea that the administration and military are best positioned to make decisions about national security issues. This Article calls for a rethinking of national security secrecy as well. The centralization of security decision-making power in the early Cold War era fostered a culture of government secrecy, with Congress and the judiciary enabling the rise of national security secrecy out of fear that they were ill-equipped to make security-related decisions, and public fear of internal and international security threats trumping concerns about legitimacy or democratic accountability. This culture of secrecy …

National Security Interest Convergence, Sudha Setty

Faculty Scholarship

Over a decade after the attacks of September 11, 2001, lawmakers, scholars, activists, and policy makers continue to confront the questions of whether and to what extent robust counterterrorism laws and policies should be reined in to protect against the abuse of civil rights and the marginalization of outsider groups. This Article uses political and critical race theory to identify areas of national security interest convergence in which political will can be marshaled to limit some national security policies.

Legislators act in their political self-interest — both in terms of responding to party forces and constituents — in casting votes …

The Obama Administration And The Prospects For A Democratic Presidency In A Post-9/11 World, Peter M. Shane

NYLS Law Review

No abstract provided.