National Security Law Commons^™

Reply To Steve On Al Bahlul, The “Law Of War,” And Article Iii, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Article Iii, The Framers, And Al Bahlul: A Reply To Steve, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Revamping International Securites Laws To Break The Financial Infrastructure Of Global Terrorism, Sireesha Chenmolu

Georgia Journal of International & Comparative Law

No abstract provided.

Rogue States, Weapons Of Mass Destruction, And Terrorism: Was Security Council Approval Necessary For The Invasion Of Iraq?, Jason Pedigo

Georgia Journal of International & Comparative Law

No abstract provided.

International Law And The Nuclear Threat In Kashmir: A Proposal For A U.S.-Led Resolution To The Dispute Under Un Authority, Billy Merck

Georgia Journal of International & Comparative Law

No abstract provided.

Bahlul And The Power Of Congress To Define International Law, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Al Bahlul And Article Iii: A Reply To Marty And Steve, Peter Margulies, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Military Commissions In America? Domestic Liberty Implications Of The Military Commissions Act Of 2006, Sean Riordan

Touro Law Review

No abstract provided.

Abstention, Balancing The Equities, And Armed Conflict In Al-Nashiri: A Reply To Steve Vladeck And Kevin Jon Heller, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Al-Nashiri, The Cole Bombing, And The Start Of The Conflict With Al-Qaeda, Peter Margulies

Law Faculty Scholarship

No abstract provided.

The Federal Witness Protection Program Revisited And Compared: Reshaping An Old Weapon To Meet New Challenges In The Global Crime Fighting Effort, Raneta Lawson Mack

University of Miami International and Comparative Law Review

No abstract provided.

A Regime In Need Of Balance: The Un Counter-­Terrorism Regimes Of Security And Human Rights, Isaac Kfir

University of Miami National Security & Armed Conflict Law Review

Since 9/11, the UN’s counter-­‐terrorism regime has developed two distinct approaches to combating international terrorism. The Security Council follows a traditional security doctrine that focuses on how to best protect states from the threat posed by international terrorists. This is largely due to the centrality of the state in Security Council thinking and attitudes. On the other hand, the General Assembly and the various UN human rights organs, influenced by the human security doctrine, have taken a more holistic, human rights-­‐based approach to the threat of international terrorism. This paper offers a review of how the dichotomy above affects the …

What Will It Take? Terrorism, Mass Murder, Gang Violence, And Suicides: The American Way, Or Do We Strive For A Better Way?, Katherine L. Record, Lawrence O. Gostin

University of Michigan Journal of Law Reform

The assertion that access to firearms makes us safe, rather than increases the likelihood that oneself or a family member will die, is contradicted by a large body of evidence. Gunshots kill more than 30,000 Americans each year. Homicide accounts for approximately one-third of these deaths, with the remainder involving suicides and accidental gun discharges. In fact, firearms put us at greater risk of death than participating in war; in four months, as many Americans were shot dead in the United States as have died fighting in Iraq for an entire decade. Given these grim statistics, it would be reasonable …

The Difference Prevention Makes: Regulating Preventive Justice, David Cole

Georgetown Law Faculty Publications and Other Works

Since the terrorist attacks of September 11, 2001, the United States and many other countries have adopted a ‘‘paradigm of prevention,’’ employing a range of measures in an attempt to prevent future terrorist attacks. This includes the use of pre textual charges for preventive detention, the expansion of criminal liability to prohibit conduct that precedes terrorism, and expansion of surveillance at home and abroad. Politicians and government officials often speak of prevention as if it is an unqualified good. Everyone wants to prevent the next terrorist attack, after all. And many preventive initiatives, especially where they are not coercive and …

Special Administrative Measures: An Example Of Counterterror Excesses And Their Roots In U.S. Criminal Justice, Francesca Laguardia

Department of Justice Studies Faculty Scholarship and Creative Works

This article examines the creation and implementation of pretrial Special Administrative Measures [SAMs], a version of pretrial solitary confinement now used most often to confine terror suspects in the federal criminal justice system. Through an in-depth archival study, this article brings attention to the importance of 20th-century criminal justice trends to the 21st-century response to the threat of terrorism, including an increasingly preventive focus and decreasing judicial checks on executive action. The findings suggest that practices believed to be excessive responses to the threat of terrorism are in fact a natural outgrowth of late modern criminal justice.

Special Administrative Measures And The War On Terror: When Do Extreme Pretrial Detention Measures Offend The Constitution?, Andrew Dalack

Michigan Journal of Race and Law

Our criminal justice system is founded upon a belief that one is innocent until proven guilty. This belief is what foists the burden of proving a person’s guilt upon the government and belies a statutory presumption in favor of allowing a defendant to remain free pending trial at the federal level. Though there are certainly circumstances in which a federal magistrate judge may—and sometimes must—remand a defendant to jail pending trial, it is well-settled that pretrial detention itself inherently prejudices the quality of a person’s defense. In some cases, a defendant’s pretrial conditions become so onerous that they become punitive …

Targeted Killings And The Interest Convergence Dilemma, Sudha Setty

Faculty Scholarship

In the 1980s, Professor Derrick Bell posited a theory of interest convergence as part of his critical race theory work, arguing that the major strides forward in civil rights law and policy that benefited African Americans in the 1950s and 1960s only occurred because of the perceived benefits of those changes to white elites during that time. In Bell’s view, it was only at the point at which the interests of powerful whites converged with those of marginalized racial minorities that significant changes in civil rights law could occur.

Twelve years after the terrorist attacks of September 11, 2001, numerous …

Country Report On Counterterrorism: United States Of America, Sudha Setty

Faculty Scholarship

The terrorist attacks of September 11, 2001, led to profound changes in societal viewpoints, political agendas, and the legal authorization to combat terrorism. The United States continues to struggle with keeping its population safe while maintaining the principles of democracy and the rule of law essential to the nation’s character. The U.S. response to terrorism has been multifaceted and expansive, reflective of the U.S. role in global security; debate over these matters will continue for the foreseeable future.

This report, prepared for the American Society of Comparative Law, offers summary, analysis and critique of many aspects of counterterrorism law, including …

Pre-Crime Restraints: The Explosion Of Targeted, Non-Custodial Prevention, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

This Article exposes the ways in which noncustodial pre-crime restraints have proliferated over the past decade, focusing in particular on three notable examples — terrorism-related financial sanctions, the No Fly List, and the array of residential, employment, and related restrictions imposed on sex offenders. Because such restraints do not involve physical incapacitation, they are rarely deemed to infringe core liberty interests. Because they are preventive, not punitive, criminal law procedural protections do not apply. They have exploded largely unchecked — subject to little more than bare rationality review and negligible procedural protections — and without any coherent theory as to …

After The Aumf, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

Over a dozen years later, the AUMF — which has never been amended — remains the principal source of the U.S. government’s domestic legal authority to use military force against al Qaeda and its associates, both on the battlefields of Afghanistan and far beyond. But even as the statutory framework has remained unchanged, the facts on the ground have evolved dramatically, leading some to call for a new AUMF. In short, calls for a new framework statute to replace the AUMF are unnecessary, provocative, and counterproductive; they perpetuate war at a time when we should be seeking to end it. …

The Trickle-Down War, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

The history of the European nation-state, wrote political sociologist Charles Tilly, is inextricably bound up with the history of warfare. To oversimplify Tilly’s nuanced and complex arguments, the story goes something like this: As power-holders (originally bandits and local strongmen) sought to expand their power, they needed capital to pay for weapons, soldiers and supplies. The need for capital and new recruits drove the creation of taxation systems and census mechanisms, and the need for more effective systems of taxation and recruitment necessitated better roads, better communications and better record keeping. This in turn enabled the creation of larger and …

Judge Pauley’S Opinion In Clapper: Reset Button For Bulk Collection Debate?, Peter Margulies

Law Faculty Scholarship

This article was originally found in Lawfare, available here: https://www.lawfareblog.com/judge-pauleys-opinion-clapper-reset-button-bulk-collection-debate

Continued Oversight Of U.S. Government Surveillance Authorities : Hearing Before The S. Committee On The Judiciary, 113th Cong., December 11, 2013 (Statement By Professor Carrie F. Cordero, Geo. U. L. Center), Carrie F. Cordero

Testimony Before Congress

My views are informed by this up-front perspective regarding how the USA PATRIOT Act of 2001, the Intelligence Reform and Terrorism Prevention Act of 2004, and later the FISA Amendments Act of 2008, vastly improved the Intelligence Community’s ability to protect the nation from another attack on the scale of September 11th. More recently, I have had the added benefit of having spent the past three years outside of government to reflect, and to engage with the academic community, and to some extent the public, regarding some of the issues this Committee is considering today.

The Legality Of Deliberate Miranda Violations: How Two-Step National Security Interrogations Undermine Miranda And Destabilize Fifth Amendment Protections, Lee Ross Crain

Michigan Law Review

As part of the global “War on Terror,” federal agents intentionally delay issuing Miranda warnings to terrorism suspects during custodial interrogations. They delay the warnings presuming that unwarned suspects will more freely offer vital national security intelligence. After a suspect offers the information he has, agents administer Miranda warnings and attempt to elicit confessions that prosecutors can use at the suspect’s trial. No court has ruled on the constitutionality of this two-step national security interrogation process to determine whether admitting the second, warned confession is allowed under Miranda v. Arizona and its progeny. A fragmented Supreme Court examined two-step interrogations …

The Voice Of Reason—Why Recent Judicial Interpretations Of The Antiterrorism And Effective Death Penalty Act’S Restrictions On Habeas Corpus Are Wrong, Judith L. Ritter

Seattle University Law Review

By filing a petition for a federal writ of habeas corpus, a prisoner initiates a legal proceeding collateral to the direct appeals process. Federal statutes set forth the procedure and parameters of habeas corpus review. The Antiterrorism and Effective Death Penalty Act (AEDPA) first signed into law by President Clinton in 1996, included significant cut-backs in the availability of federal writs of habeas corpus. This was by congressional design. Yet, despite the dire predictions, for most of the first decade of AEDPA’s reign, the door to habeas relief remained open. More recently, however, the Supreme Court reinterpreted a key portion …

Beyond The Battlefield, Beyond Al Qaeda: The Destabilizing Legal Architecture Of Counterterrorism, Robert M. Chesney

Michigan Law Review

By the end of the first post-9/11 decade, the legal architecture associated with the U.S. government’s use of military detention and lethal force in the counterterrorism setting had come to seem relatively stable, supported by a remarkable degree of cross-branch and cross-party consensus (manifested by legislation, judicial decisions, and consistency of policy across two very different presidential administrations). That stability is certain to collapse during the second post-9/11 decade, however, thanks to the rapid erosion of two factors that have played a critical role in generating the recent appearance of consensus: the existence of an undisputed armed conflict in Afghanistan, …

Continued Oversight Of The Foreign Intelligence Surveillance Act : Hearing Before The S. Committee On The Judiciary, 113th Cong., October 2, 2013 (Statement By Professor Carrie F. Cordero, Geo. U. L. Center), Carrie F. Cordero

Testimony Before Congress

From my perspective, the challenge for members of this Committee is to identify whether there are actual problems with either the law or process, and then craft remedies that address those specific issues. I am here to urge caution in implementing “quick fixes” that may sound appealing based on public or media-driven pressure, but that could have lasting consequences at a practical level that could negatively impact Intelligence Community operations and the nation’s security for years to come.

Continued Oversight Of The Foreign Intelligence Surveillance Act : Hearing Before The S. Committee On The Judiciary, 113th Cong., October 2, 2013 (Remarks By Professor Laura K. Donohue, Geo. U. L. Center), Laura K. Donohue

Testimony Before Congress

Congress introduced the 1978 Foreign Intelligence Surveillance Act (FISA) to make use of new technologies and to enable the intelligence community to obtain information vital to U.S. national security, while preventing the National Security Agency (NSA) and other federal intelligence-gathering entities from engaging in broad domestic surveillance. The legislature sought to prevent a recurrence of the abuses of the 1960s and 1970s that accompanied the Cold War and the rapid expansion in communications technologies.

Congress purposefully circumscribed the NSA’s authorities by limiting them to foreign intelligence gathering. It required that the target be a foreign power or an agent thereof, …

Terrorism, Ticking Time-­‐Bombs, And Torture: A Philosophical Analysis, By Fritz Allhoff, Krysta Ku

University of Miami National Security & Armed Conflict Law Review

No abstract provided.

The Iranian Nuclear Crisis: An Assessment, Gawdat Bahgat

The US Army War College Quarterly: Parameters

No abstract provided.