National Security Law Commons^™

United To Deter: Dealing With New Means Of Supporting Terror, Frank A. Florio

University of Miami International and Comparative Law Review

No abstract provided.

The Theory And Practice At The Intersection Between Human Rights And Humanitarian Law, Monica Hakimi

Reviews

The United States is more than fifteen years into a fight against terrorism that shows no sign of abating and, with the change in administration, appears to be intensifying. Other Western democracies that have historically been uneasy about U.S. counterterrorism policies have, in recent years, shifted toward those policies. And armed nonstate groups continue to commit large-scale acts of violence in multiple distinct theaters. The legal issues that these situations present are not entirely new, but neither are they going away. Recent publications, like the three works under review, thus provide useful opportunities to reflect on and refine our thinking …

Executive Power And National Security Power, Julian Davis Mortenson, Andrew Kent

Book Chapters

The constitutional text governing national security law is full of gaps, oversights, and omissions. In combination with the authorization principle -- which requires all federal actors to identify particularized authority for their actions -- these gaps have often presented an acute dilemma for Presidents charged with defending the nation. Focusing on three periods in American history, this chapter sketches the historical evolution of how the political branches have responded.

First, the early republic. During this period, presidents responded to the authorization dilemma by seeking highly particularized authorization from the two other constitutional branches of government. Throughout the era, presidents’ claims …

How The War On Terror Is Transforming Private U.S. Law, Maryam Jamshidi

UF Law Faculty Publications

In thinking about the War on Terror’s impact on U.S. law, what most likely comes to mind are its corrosive effects on public law, including criminal law, immigration, and constitutional law. What is less appreciated is whether and how the fight against terrorism has also impacted private law. As this Article demonstrates, the War on Terror has had a negative influence on private law, specifically on torts, where it has upended long-standing norms, much as it has done in the public law context.

Case law construing the private right of action under the Antiterrorism Act of 1992, 18 U.S.C. § …

Congressional Authorization Of The Campaign Against Isil, Tyler Salway

Indiana Law Journal

I. THE BIRTH OF ISIL

II. CONGRESSIONAL AUTHORIZATION

A. EXPRESS AUTHORIZATION

1. METHODS OF INCLUSION

2. ISIL’S INCLUSION UNDER THE 9/11 AUMF

B. IMPLICIT AUTHORIZATION

III. ISIL AND THE TRUMP PRESIDENCY

CONCLUSION

Excavating The Forgotten Suspension Clause, Helen Norton

Publications

No abstract provided.

Due Process Of War, Nathan Chapman

Scholarly Works

The application of the Due Process Clause of the Fifth Amendment to the government’s deprivation of rights during war is one of the most challenging and contested questions of constitutional law. The Supreme Court has not provided a consistent or historically informed framework for analyzing due process during war. Based on the English background, the text and history of the U.S. Constitution, and early American practice, this Article argues that due process was originally understood to apply to many but not to all deprivations of rights during war. It proposes a framework for analyzing due process during war that accords …

Prosecuting The War On Terror In The Trump Administration: The Trump Doctrine: Is There Really A New Sheriff In Town, Jeffrey F. Addicott

Faculty Articles

After one full year in office, it is time to examine the actions taken by the Trump Administration in light of its legal and policy structures for dealing with the War on Terror and the companion problem of radical Islamic terrorism-both the domestic and international threat. In this context, two general concepts bear examination. First, is there a significant change in the Trump Administration from the policies of the Bush and Obama Administrations vis a vis prosecuting the War on Terror and dealing with domestic jihadists? Second, has the Trump strategic vision and attendant actions contributed in any significant way …

The Future Of Nuclear Security: A Medical Physicist’S Perspective, Katharine E. Thomson

International Journal of Nuclear Security

Planning for the future of nuclear security is a vital and complex task, requiring cooperation and contribution from many disciplines and industries. This diversity of expertise should include the medical sector, which faces many of the same challenges as the nuclear industry: controlling access to dangerous material, creating a strong security culture, cooperating with the wider world and engaging the public.

Medical physicists, of which the author is one, oversee all aspects of small-scale radiation use. This paper discusses three key areas increasingly important to both medical and nuclear uses of radioactive materials: public engagement, prevention of nuclear and radiological …

Contrasting Perspectives And Preemptive Strike: The United States, France, And The War On Terror, Sophie Clavier

Maine Law Review

A few years ago, Samuel P. Huntington's article in Foreign Affairs, "The Clash of Civilizations?" described a "West vs. the Rest" conflict leading to the assumption of an essentially unified Western civilization settling "[g]lobal political and security issues ... effectively ... by a directorate of the United States, Britain and France" and centered around common core values "using international institutions, military power and economic resources to run the world in ways that will . . . protect Western interests . . . .” Against the West, the specter of disorder and fundamentalism was looming and would precipitate conflicts. This widely …

Unilateral And Multilateral Preventive Self-Defense, Stéphanie Bellier

Maine Law Review

The governing principle of the collective security system created by the United Nations Charter in 19451 is the rule prohibiting the use of force in Article 2(4), which provides that "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purpose of the United Nations." This rule prohibiting the use of force was considered revolutionary at the time because it transformed into international law ideas which had for centuries, if not millennia, preoccupied the minds of people …

Contemporary Practice Of The United States Relating To International Law, October 2017, Kristina Daugirdas, Julian Davis Mortenson

Articles

In this section: Congress Enacts Sanctions Legislation Targeting Russia • United States and Qatar Sign Memorandum of Understanding over Terrorism Financing • Trump Reverses Certain Steps Toward Normalizing Relations with Cuba • United States Announces Plans to Withdraw from Paris Agreement on Climate Change • President Trump Issues Trade-Related Executive Orders and Memoranda • United States, Russia, and Jordan Sign Limited Ceasefire for Syria • Trump Administration Recertifies Iranian Compliance with JCPOA Notwithstanding Increasing Concern with Iranian Behavior

The Future Of U.S. Detention Under International Law: Workshop Report, International Committee Of The Red Cross (Icrc), Harvard Law School Program On International Law And Armed Conflict (Hls Pilac), Stockton Center For The Study Of International Law (U.S. Naval War College)

International Law Studies

The International Committee of the Red Cross Regional Delegation for the United States and Canada, the Harvard Law School Program on International Law and Armed Conflict, and the Stockton Center for the Study of International Law at the U.S. Naval War College recently hosted a workshop titled Global Battlefields: The Future of U.S. Detention under International Law. The workshop was designed to facilitate discussion on international law issues pertaining to U.S. detention practices and policies in armed conflict. Workshop participants included members of government, legal experts, practitioners and scholars from a variety of countries. This report attempts to capture the …

Sony, Cyber Security, And Free Speech: Preserving The First Amendment In The Modern World, Conrad Wilton

Pace Intellectual Property, Sports & Entertainment Law Forum

Reprinted from 16 U.C. Davis Bus. L.J. 309 (2016). This paper explores the Sony hack in 2014 allegedly launched by the North Korean government in retaliation over Sony’s production of The Interview and considers the hack’s chilling impact on speech in technology. One of the most devastating cyber attacks in history, the hack exposed approximately thirty- eight million files of sensitive data, including over 170,000 employee emails, thousands of employee social security numbers and unreleased footage of upcoming movies. The hack caused Sony to censor the film and prompted members of the entertainment industry at large to tailor their communication …

A Comparative Approach To Counter-Terrorism Legislation And Legal Policy, Paul David Hill Jr

Senior Honors Theses

Since the 9/11 attacks, American legislation and legal policy in regards to classifying and processing captured terrorists has fallen short of being fully effective and lawful. Trial and error by the Bush and Obama administrations has uncovered two key lessons: (1) captured terrorists are not typical prisoners of war and thus their detainment must involve more legal scrutiny than the latter; and (2) captured terrorists are not ordinary criminals and thus the civilian criminal court system, due to constitutional constraints, is not capable of adequately trying every count of terrorism. Other nations, including France and Israel, approach this problem with …

Adrift At Sea: How The United States Government Is Forgoing The Fourth Amendment In The Prosecution Of Captured Terrorists, Frank Sullivan

Penn State Journal of Law & International Affairs (2012 - Present)

No abstract provided.

A Human Rights Perspective To Global Battlefield Detention: Time To Reconsider Indefinite Detention, Yuval Shany

International Law Studies

This article discusses one principal challenge to detention without trial of suspected international terrorists—the international human rights law (IHRL) norm requiring the introduction of an upper limit on the duration of security detention in order to render it not indefinite in length. Part One of this article describes the “hardline” position on security detention, adopted by the United States in the immediate aftermath of the 9/11 terror attacks (followed, with certain variations, by other countries, including the United Kingdom and the State of Israel), according to which international terrorism suspects can be deprived of their liberty without trial for the …

The Limits Of Inviolability: The Parameters For Protection Of United Nations Facilities During Armed Conflict, Laurie R. Blank

International Law Studies

This article examines the international legal protections for United Nations humanitarian assistance and other civilian facilities during armed conflict, including under general international law, setting forth the immunities of the United Nations, and the law of armed conflict (LOAC), the relevant legal framework during wartime. Recent conflicts highlight three primary issues: (1) collateral damage to UN facilities as a consequence of strikes on military objectives nearby and military operations in the immediate vicinity; (2) the misuse of UN facilities for military purposes; and (3) direct attacks on fighters, weapons or other equipment that cause damage to such facilities. To identify …

The French Army At A Crossroads, Rémy Hémez

The US Army War College Quarterly: Parameters

No abstract provided.

Newsroom: Order Violates Roger Williams' Principles 01-30-2017, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Rwu First Amendment Blog: Jared A. Goldstein's Blog: Trump's Order Violates Bedrock Principles Of Roger Williams And Ri 01-30-2017, Jared A. Goldstein

Law School Blogs

No abstract provided.

If We Don’T Bring Them To Court, The Terrorists Will Have Won: Reinvigorating The Anti-Terrorist Act And General Jurisdiction In A Post-Daimler Era, Stephen J. Digregoria

Brooklyn Law Review

Prior to the Supreme Court's recent general personal jurisdiction decisions in Daimler AG v. Bauman and Goodyear Dunlop Tires Operations S.A. v. Brown American terror victims, injured in terror attacks abroad, were able to bring their attackers and those who sponsor them into United States courts for relief. Specifically, groups like the Palestine Liberation Organization (the PLO) and the Palestinian Authority (the PA) had a history of being sued by American victims of terror. In the course of these suits, the PLO and the PA were regularly found subject to the personal jurisdiction of U.S. courts under a theory of …

The Lawyers' War: Counterterrorism From Bush To Obama To Trump, Dawn E. Johnsen

Articles by Maurer Faculty

No abstract provided.

Without Unnecessary Delay: Using Army Regulation 190–8 To Curtail Extended Detention At Sea, Meghan Claire Hammond

Northwestern University Law Review

This Note analyzes instances of U.S. detention of suspected terrorists while at sea as an alternative to Guantánamo, and how this at-sea detention fits in the interplay of U.S. statutory law, procedural law, and applicable international law. Of particular interest is the dual use of military and civilian legal regimes to create a procedural-protection-free zone on board U.S. warships during a detainee’s transfer from their place of capture to the U.S. court system. The Note concludes that U.S. Army Regulation 190–8 contains language of which the purpose and intent may be analogized to the Federal Rules of Criminal Procedure requirements …

The Identification And Exploitation Of Terrorist Financing, Jacob S. Gordon

Senior Honors Theses

Terrorism and the threat of terrorist attacks have forced the United States to place a high priority on developing a comprehensive counterterrorism strategy. A crucial component of this overarching strategy focuses on targeting the finances of a terrorist organization, hoping to eliminate or stifle their sources of funding in an effort to render the organization incapable of launching successful operations due to an absence of funding. By analyzing the most common financing options that terrorist groups use, the United States can hone its ability to disrupt the funding operations for terrorist groups. Likewise, developing a method for tracking the laundering …

Foreign Terrorist Fighters In Syria: Challenges Of The “Sending” State, Marten Zwanenburg

International Law Studies

This article discusses domestic measures taken by the Netherlands to combat the phenomenon of foreign terrorist fighters, predominantly in the context of the Syrian conflict. It discusses criminal prosecution, asset freezes, deprivation of nationality and revocation of travel documents. The author concludes that in each of these fields, there is a close relationship between international law and national law.

Obama's National Security Exceptionalism, Sudha Setty

Chicago-Kent Law Review

The label of national security exceptionalism fits the Obama administration in two ways: first, although the administration has actively sought to address and improve the protection of human rights and civil rights of racial minorities suffering disparate negative treatment in a variety of contexts, those moves toward rights protection generally do not extend to the realm of counterterrorism abuses, although almost all of those who have suffered from violations of human and civil rights in the post-9/11 counterterrorism context are racial and/or religious minorities. One of the justifications for this exceptionalism is based on the widespread view that national security …

Rescuing Policy And Terror Victims: A Concerted Approach To The Ransom Dilemma, C. Elizabeth Bundy

Michigan Journal of International Law

Part I of this Note will analyze the current framework governing hostage situations to determine the permissibility of ransom payments under international law. Part II will examine the two dominant positions that have developed among states and identify the justifications and shortcomings of each. Part III will conclude, firstly, that for states to develop a multilateral approach to hostage situations, they must take the lead within their respective domestic spheres and, secondly, that the option to negotiate for ransomed release should be preserved as an essential tool for confronting terrorist organizations.

Contemporary Practice Of The United States Relating To International Law, July 2016, Kristina Daugirdas, Julian Davis Mortenson

Articles

In this section: • U.S. Supreme Court Upholds Law Facilitating Compensation for Victims of Iranian Terrorism • Russia Argues Enhanced Military Presence in Europe Violates NATO-Russia Agreement; United States Criticizes Russian Military Maneuvers over the Baltic Sea as Inconsistent with Bilateral Treaty Governing Incidents at Sea • U.S. Secretary of State Determines ISIL Is Responsible for Genocide • United States Blocks Reappointment of WTO Appellate Body Member • U.S. Department of Defense Releases Report of Investigation Finding That October 2015 Air Strike on Doctors Without Borders Hospital in Kunduz, Afghanistan, Was Not a War Crime • United States Expands Air …

Is Immigration Law National Security Law?, Shoba S. Wadhia

Faculty Scholarship

The debate around how to keep America safe and welcome newcomers is prominent. In the last year, cities and countries around the world, including Baghdad, Dhaka, Istanbul, Paris, Beirut, Mali and inside the United States - have been vulnerable to terrorist attacks and human tragedy. Meanwhile, the world faces the largest refugee crises since the Second World War.

This article is based on remarks delivered at Emory Law Journal’s annual Thrower Symposium on February 11, 2016. It explores how national security concerns have shaped recent immigration policy in the Executive Branch, Congress and the states and the moral, legal and …