National Security Law Commons^™

Responses To Ten Questions, William C. Banks

William Mitchell Law Review

No abstract provided.

Responses To Ten Questions, Marion "Spike" Bowman

William Mitchell Law Review

No abstract provided.

Responses To Ten Questions, Victor Hansen

William Mitchell Law Review

No abstract provided.

Responses To Ten Questions, Scott Horton

William Mitchell Law Review

No abstract provided.

Responses To Ten Questions, Michael J. Kelly

William Mitchell Law Review

No abstract provided.

Responses To Ten Questions, Gregory E. Maggs

William Mitchell Law Review

No abstract provided.

Why The Hubbub About Habeas?: A Post-Mortem On A Failed Policy, Joseph Margulies

William Mitchell Law Review

No abstract provided.

Taking The "Combat" Out Of The "Enemy Combatant" Category: Yet Another Expansion Of The President's Authority To Indefinitely Detain "Enemy Combatants" Within The United States—Al-Marri V. Pucciarelli, 534 F.3d 213 (4th Cir. 2008), Scott M. Kranz

William Mitchell Law Review

No abstract provided.

Funding Bin Laden's Avatar: A Proposal For The Regulation Of Virtual Hawalas, Stephen I. Landman

William Mitchell Law Review

No abstract provided.

Security Vs. The Law: A False Choice, Walter F. Mondale

William Mitchell Law Review

No abstract provided.

Secret Evidence And The Due Process Of Terrorist Detentions, Daphne Barak-Erez, Matthew C. Waxman

Faculty Scholarship

Courts across many common law democracies have been wrestling with a shared predicament: proving cases against suspected terrorists in detention hearings requires governments to protect sensitive classified information about intelligence sources and methods, but withholding evidence from suspects threatens fairness and contradicts a basic tenet of adversarial process. This Article examines several models for resolving this problem, including the "special advocate" model employed by Britain and Canada, and the 'Judicial management" model employed in Israel. This analysis shows how the very different approaches adopted even among democracies sharing common legal foundations reflect varying understandings of 'fundamental fairness" or "due process," …

Unaccountable? The United Nations, Emergency Powers, And The Rule Of Law, Simon Chesterman

Vanderbilt Journal of Transnational Law

For a body committed to the rule of law in theory, the applicability of the rule of law to the United Nations in practice remains oddly unclear. This Article will not consider the personal responsibility of UN officials, who generally enjoy personal or functional immunity from legal process in the territories where they work. Rather the focus of this Article is on the quasi-constitutional question of the liability of the organization itself. As the United Nations has assumed more state-like functions-in particular through the coercive activities of its Security Council--the question of what limits exist on the powers thus exercised …

Terrorist Detention: Directions For Reform, Benjamin Priester

Journal Publications

Counterterrorism efforts by the U.S. government since 2001 have produced numerous legal controversies. One of the most controversial subjects has been the detention of individuals allegedly involved with terrorist organizations or activities. Unlike traditional criminal detainees, such persons are not held pursuant to indictment on charges pending trial or to a verdict of conviction. Unlike traditional military detainees, they are not battlefield captives from combat in a war zone against the military forces of another nation. Rather, terrorist detainees are held based on the individual's alleged connections to terrorist organizations and activities, without more. Terrorist detention, so defined, is an …

An Improved Analytical Framework For The Official Acknowledgment Doctrine: A Broader Interpretation Of “Through An Official And Documented Disclosure”, Jessica Fisher

NYLS Law Review

No abstract provided.

Bah V. Mukasey, Sandrine Dehaeze

NYLS Law Review

No abstract provided.

Le Développement De L’Évaluation De La Menace De La Criminalité Organisée Et L’Architecure De Sécurité Intérieure (Development Of The Organised Crime Threat Assessment (Octa) And Internal Security Architecture), Benjamin J. Goold

All Faculty Publications

Cette note propose une vue d’ensemble de l’approche européenne des questions de sécurité, de lutte contre le terrorisme et contre la criminalité organisée. Elle aborde plus particulièrement le rôle de la Stratégie européenne de sécurité (SES) dans l’élaboration des politiques et des dispositions institutionnelles, ainsi que l’influence de l’OCTA (Évaluation de la menace de la criminalité organisée). cette note recommande qu’un certain nombre de mesures soient prises pour recentrer et rationaliser les structures existantes attachées aux questions de sécurité et de lutte contre le terrorisme et le crime organisé. Le nombre d’agences directement ou indirectement impliquées dans le recueil d’informations, …

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.

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. …

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 …

Administrative Detention Of Terrorists: Why Detain, And Detain Whom?, Matthew C. Waxman

Faculty Scholarship

This article aims to reframe the administrative detention debate, not to resolve it. In doing so, however, it aspires to advance the discussion by highlighting the critical substantive choices embedded in calls for legal procedural reform and by pointing the way toward appropriately tailored legislative options. It argues that the current debate’s focus on procedural and institutional questions of how to detain suspected terrorists has been allowed to overshadow the questions of why administratively detain, and whom to detain. Not only are the answers to these questions at least as important as the procedural rules in safeguarding and balancing liberty …

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 …

International Human Rights Law And Security Detention, Douglass Cassel

Journal Articles

This article analyzes the grounds, procedures, and conditions required by International Human Rights Law for preventive detention of suspected terrorists as threats to security. Such detention is generally permitted, provided it is based on grounds and procedures previously established by law; is not arbitrary, discriminatory, or disproportionate; is publicly registered and subject to fair and effective judicial review; and the detainee is not mistreated and is compensated for any unlawful detention. In Europe, however, preventive detention for security purposes is generally not permitted. If allowed at all, it is permitted only when a State in time of national emergency formally …