National Security Law Commons^™

Liberty, Judicial Review, And The Rule Of Law At Guantanamo: A Battle Half Won, Douglass Cassel

Journal Articles

In Boumediene v. Bush, 128 S. Ct. 2229 (2008), five members of the Supreme Court held that foreign prisoners at Guantanamo enjoy the constitutional privilege of habeas corpus; that their imprisonment had lasted too long for the Court to await completion of statutory review by lower courts of military tribunal findings that the prisoners were "enemy combatants"; and that the statutory judicial review was too deficient to substitute for the Great Writ.

Four Justices vigorously dissented. On the surface they differed on the history of the reach of the common law writ of habeas corpus, and on the procedural …

True Believers At Law: National Security Agendas, The Regulation Of Lawyers, And The Separation Of Powers, Peter Margulies

Law Faculty Scholarship

Ideological agendas distort the deliberation required for sound legal advice about national security. Elite government lawyers after September 11 advanced a theory at the expense of context, labeling legal constraints as "lawfare" against American interests. The lawfare critics failed to recognize that legal constraints can empower decision makers by reinforcing reputational and other long-term values. They also failed their history test, ignoring the lessons of presidents from Jefferson to Kennedy who rejected a rigid adherence to ideology in the national security realm. By discounting context, the construction of the lawfare paradigm produced dire results, including the torture memos drafted by …

Tinkering With Torture In The Aftermath Of Hamdan: Testing The Relationship Between Internationalism And Constitutionalism, Catherine Powell

Georgetown Law Faculty Publications and Other Works

Bridging international and constitutional law scholarship, the author examines the question of torture in light of democratic values. The focus in this article is on the international prohibition on torture as this norm was addressed through the political process in the aftermath of Hamdan v. Rumsfeld. Responding to charges that the international torture prohibition--and international law generally--poses irreconcilable challenges for democracy and our constitutional framework, the author contends that by promoting respect for fundamental rights and for minorities and outsiders, international law actually facilitates a broad conception of democracy and constitutionalism. She takes on the question of torture within …

Who Is A Terrorist - Drawing The Line Between Criminal Defendants And Military Enemies, Benjamin Priester

Journal Publications

The threat of terrorist attacks by al Qaeda and other transnational terrorist organizations is a constant topic of public discourse in the United States. Despite its prominence, the nature of that threat is notoriously difficult to define. On the one hand, terrorists might be compared to other kinds of organized, dangerous criminals who should be prosecuted and punished using the federal criminal law. On the other hand, terrorists might be compared to enemy soldiers engaged in warfare against the United States. There are problems with either approach, however, because the threat posed by al Qaeda and other transnational terrorist organizations …

Book Review, Jordan J. Paust, Beyond The Law: The Bush Administration’S Unlawful Responses In The ‘War’ On Terror (2007), Mark A. Drumbl

Scholarly Articles

The situation at Guantánamo is one of several past and ongoing examples of what Jordan Paust calls ‘dirty war tactics' deployed by the United States in response to the 9/11 attacks. In Beyond the Law: The Bush Administration's Unlawful Responses in the ‘War’ on Terror, Professor Paust describes these ‘dirty war tactics' and claims that, in undertaking them, the Bush Administration balefully has corroded the rule of law itself.

A Tale Of Two Networks: Terrorism, Transnational Law, And Network Theory, Christopher J. Borgen

Faculty Publications

Talk of networks and "network theory" has become almost ubiquitous in the field of counterterrorism. Terrorist organizations are networks. Terrorists have been empowered by the Internet, ethnic diasporas, and cell phones—networks all. Many of the putative targets of terrorists—electrical grids, oil pipelines, and transportation systems, to name a few—are themselves networks. And, perhaps less often mentioned, terrorists are increasingly hampered by national and international laws that foster cooperation and coordination among states—a network of laws.

From "smart mobs" to "net wars," from narco-trafficking to the Internet, network theory has provided insights into decentralized social organizations and their coordinated action. Both …

Court Grants Stay Of Injunction In Navy Sonar Case, Alicia Schaffner

Sea Grant Law Fellow Publications

No abstract provided.

The Memory Gap In Surveillance Law, Patricia L. Bellia

Journal Articles

U.S. information privacy laws contain a memory gap: they regulate the collection and disclosure of certain kinds of information, but they say little about its retention. This memory gap has ever-increasing significance for the structure of government surveillance law. Under current doctrine, the Fourth Amendment generally requires government agents to meet high standards before directly and prospectively gathering a target's communications. The law takes a dramatically different approach to indirect, surveillance-like activities, such as the compelled production of communications from a third party, even when those activities yield the same information as, or more information than, direct surveillance activities. Because …

The Reformed Cfius Regulatory Framework: Mediating Between Continued Openness To Foreign Investment And National Security, George S. Georgiev

Articles

No abstract provided.

A Running Start: Getting “Law Ready” During A Presidential Transition, James E. Baker

Georgetown Law Faculty Publications and Other Works

We are headed for our first wartime Presidential transition in forty years. The good news is that this has prompted uncommon attention to the process of transition. The bad news is that transitions are difficult in the best of circumstances; forewarned does not always equal prepared. The United States handles transitions well on a strategic level. Strategic continuity is found in the Constitution. Transition is also part of the rhythm of government. The intelligence community, for example, has a sound tradition of briefing candidates and Presidents-elect. However, there is tactical vulnerability. An outgoing administration may hesitate to initiate all but …

The Twenty Year Test: Principles For An Enduring Counterterrorism Legal Architecture, James E. Baker

Georgetown Law Faculty Publications and Other Works

The United States faces three enduring terrorism-related threats. First, there is the realistic prospect of additional attacks in the United States including attacks using weapons of mass destruction (“WMD”). Second, in responding to this threat, we may undermine the freedoms that enrich our lives, the tolerance that marks our society, and the democratic values that define our government. Third, if we are too focused on terrorism, we risk losing sight of this century’s other certain threats as well as the capacity to respond to them, including the state proliferation of nuclear weapons, nation-state rivalry, pandemic disease, oil dependency, and environmental …

Panel: Restrictions On Freedom Of Association Through Material Support Prohibitions And Visa Denials, David Cole

Georgetown Law Faculty Publications and Other Works

In the 1950s, we were afraid of communism. We were afraid, in particular, of the Soviet Union, the world's second greatest superpower, which was armed with masses of nuclear warheads aimed at all our largest cities. As a result, we fought the Cold War, engaged in espionage, proxy wars, and an arms race. We also took aggressive preventive measures at home. The principal preventive measure of that period was guilt by association. We made it a crime to be a member of the Communist Party, and we created a whole administrative scheme to implement and enforce this notion of guilt …

Less Safe, Less Free: A Progress Report On The War On Terror: Address To The Terrorism & Justice Conference At The University Of Central Missouri, David Cole

Georgetown Law Faculty Publications and Other Works

The Bush Administration since 9-11 has adopted a strategy, which in some sense depends upon the ability to predict with incredible accuracy at what will happen in the future. It was given its name by the U.S. Attorney General during the first Bush Administration, Missouri’s John Ashcroft, who argued that what we need in the wake of 9-11 is a “preventive paradigm.” The argument is understandable: when facing foes who are willing to commit suicide in order to inflict mass casualties on innocent civilians, it is not enough to bring them to justice after the fact. The perpetrators are dead--and …

Judicial Power And Moral Ideology In Wartime: Shaping The Legal Process In World War I Britain , Rachel Vorspan

Faculty Scholarship

Offering a cautionary lesson of contemporary significance, the Article suggests that judicial power is not in and of itself the solution to executive infringements on due process rights in wartime. It examines the response of the British judiciary to serious threats to its institutional power during the First World War. To facilitate prosecution of the war, the government narrowed the jurisdiction of the traditional courts by eliminating jury trial, subjecting civilians to court-martial, and establishing new administrative tribunals to displace the traditional courts. Rather than remaining passive and deferential to the executive, as scholars have generally assumed, the judges moved …

Book Review, Susan Nevelow Mart

Publications

No abstract provided.

The Accounting: Habeas Corpus And Enemy Combatants, Emily Calhoun

Publications

The judiciary should impose a heavy burden of justification on the executive when a habeas petitioner challenges the accuracy of facts on which an enemy combatant designation rests. A heavy burden of justification will ensure that the essential institutional purposes of the writ--and legitimate, separated-powers government--are preserved, even during times of national exigency. The institutional purposes of the writ argue for robust judicial review rather than deference to the executive. Moreover, the procedural flexibility traditionally associated with the writ gives the judiciary the tools to ensure that a heavy burden of justification can be imposed.

The Chains Of The Constitution And Legal Process In The Library: A Post-Usa Patriot Reauthorization Act Assessment, Susan Nevelow Mart

Publications

Since the Patriot Act was passed in 2001, controversy has raged over nearly every provision. The controversy has been particularly intense over provisions that affect the patrons of libraries. This article follows those Patriot Act provisions that affect libraries, and reviews how they have been interpreted, how the Patriot Reauthorization Acts have changed them, and what government audits and court affidavits reveal about the use and misuse of the Patriot Act. The efforts of librarians and others opposed to the Patriot Act have had an effect, both legislatively and judicially, in changing and challenging the Patriot Act. Because libraries are …

Manipulating And Hiding Terrorist Content On The Internet: Legal And Tradecraft Issues, Jack F. Williams

Faculty Publications By Year

No abstract provided.

The World Trade Center Disaster: How Terrorist Airline Attacks Can Affect The Legal, Economic, And Financial Conditions Of Airlines Under The Montreal Liability Agreement, Larry Moore, Rose M. Rubin, Justin N. Joy

Brigham Young University International Law & Management Review

No abstract provided.

Emergency Federalism: Calling On The States In Perilous Times, Adam M. Giuliano

University of Michigan Journal of Law Reform

The attacks of September 11 prompted a historic debate concerning terrorism and domestic emergency response. This ongoing dialogue has driven policy decisions touching upon both liberty and security concerns. Yet despite the enormous effort that has gone into the national response, the role of the sovereign states, and with it federalism, has received comparatively little attention. This Article explores the relevance of federalism within the context of the "War on Terror" and in the aftermath of Hurricane Katrina. Acknowledging that theories of federalism developed elsewhere are insufficient, he outlines a doctrine of 'emergency federalism.' The author argues that the Framers …

Congress Has The Power To Enforce The Bill Of Rigths Against The Federal Government; Therefore Fisa Is Constitutional And The President's Terrorist Surveillance Program Is Illegal, Wilson R. Huhn

William & Mary Bill of Rights Journal

The principal point of this Article is that Congress has plenary authority to enforce the Bill of Rights against the federal government. Although this precept is a fundamental one, neither the Supreme Court nor legal scholars have articulated this point in clear, simple, and direct terms. The Supreme Court does not have a monopoly on the Bill of Rights. Congress, too, has constitutional authority to interpret our rights and to enforce or enlarge them as against the actions of the federal government. Congress exercised its power to protect the constitutional rights of American citizens when it enacted the Foreign Intelligence …

Asset Freezing Of Islamic Charities Under The International Economic Emergency Powers Act: A Fourth Amendment Analysis, David Klass

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

National Security, The Law, The Meda: Shaping Public Perceptions, Linda Robinson

International Law Studies

No abstract provided.

Domestic Security And Maintenance Of Liberty: Striking The Balance, Paul Mchale

International Law Studies

No abstract provided.

Youngstown, Hamdan, And "Inherent" Emergency Presidential Policymaking Powers, Gordon G. Young

Faculty Scholarship

This brief article explores the contribution that Hamdan v Rumsfeld may have made to clarifying what should happen in the large interstices of the rules created by the Youngstown case for determining the validity of claims of Presidential power. It offers its own view of the scope of Presidential powers in extreme emergencies involving the incapacitation of the legislative branch.

A Soldier's Blog: Balancing Service Members' Personal Rights Vs. National Security Interests, Tatum H. Lytle

Federal Communications Law Journal

This Note examines the competing interests between ensuring military personnel's freedom of speech while protecting national security interests. The Author recognizes the necessity of protecting national security interests but emphasizes that military personnel's rights to free speech must be protected as long as such speech poses no threat to military security. In conclusion, clearer protections must be implemented to protect military personnel's right to free speech.

Risky Business: Corruption, Fraud, Terrorism, & Other Threats To Global Business, Stuart Poole-Robb, Alan Bailey

Brigham Young University International Law & Management Review

No abstract provided.

Uncharged Misconduct - The Edge Is Never Dull, David Coombs

Other Scholarship

No abstract provided.

Dying Like Men, Falling Like Princes: Reflections On The War On Terror, Edward Rial Armstrong

University of Arkansas at Little Rock Law Review

The attacks of September 11, 2001 brought home the point that even a mighty nation like ours is vulnerable to injury, and that even a goliath can sometimes be dealt a serious blow by a much smaller opponent. Faced with a world in which individuals can wield incredible destructive power and in which economic weakness can cause an empire to collapse despite its military might, what types of policies and laws should we adopt to confront these realities? In particular, what types of laws and policies should we adopt to deal with the threat of terrorism? This article proceeds on …

"Quotidian" Judges Vs. Al-Qaeda, Mark S. Davies

Michigan Law Review

In Terror in the Balance: Security, Liberty, and the Courts, University of Chicago law professors Eric A. Posner and Adrian Vermeule invite those of us worried about the American response to al-Qaeda to consider the proper role of judges. Judges, of course, are not being dispatched to the hills of Pakistan nor are they securing our borders or buildings. But as the executive seeks to implement a range of new policies in the name of protecting us from al-Qaeda, the judicial treatment of these policies shapes the American response. Posner and Vermeule suggest a kind of Hippocratic view of …