President/Executive Department Commons^™

The Long War, The Federal Courts, And The Necessity/Legality Paradox, Stephen I. Vladeck

University of Richmond Law Review

No abstract provided.

Boumediene And Lawfare, Tung Yin

University of Richmond Law Review

No abstract provided.

The Future Of Detainees In The Global War On Terror: A U.S. Policy Perspective, Saxby Chamblis

University of Richmond Law Review

No abstract provided.

Combatants And The Combat Zone, Mary Ellen O'Connell

University of Richmond Law Review

No abstract provided.

Title Vi Disparate Impact Claims Would Not Harm National Security - A Response To Paul Taylor, 46 Harv. J. On Legis. 503 (2009), Michael T. Kirkpatrick, Margaret B. Kwoka

UIC Law Open Access Faculty Scholarship

As Paul Taylor recognizes in the previous issue of this volume of the Harvard Journal on Legislation, Congress is considering amendments to Title VI of the Civil Rights Act of 1964 to explicitly allow private plaintiffs to use the disparate impact theory to prove discrimination by recipients of federal financial assistance. This Article responds to Taylor's assertion that allowing such disparate impact claims could harm national security programs. The authors explore the history of the disparate impact theory under both Title VI and Title VII, explain that use of the theory is consistent with Congress's original intent, and argue that …

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 …

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 …

Weakening The Bill Of Rights: A Victory For Terrorism, Stephen Reinhardt

Michigan Law Review

What is most remarkable about Richard Posner's latest book-and he has written many-is that he argues that we should repose full confidence in the executive branch to handle the most sensitive constitutional issues of our time without once mentioning the flagrant breaches of law and critical falsehoods with which President Bush and his administration have deluged the public since 9/11. This only seven years after he composed a lengthy tome regarding President Clinton's impeachment in which he appropriately, if harshly, condemned the president for his unethical and illegal conduct, principally his deliberate lies and purposeful lack of candor with the …

The Cia's Public Operational Files: Accessing Files Exempt From The Cia Information Act Of 1984 Because Of Investigations Into Illegal Or Improper Activity, Hannah H. Bergman

Florida A & M University Law Review

No abstract provided.

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 …

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 …

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.

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 …

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.

"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 …

What’S International Law Got To Do With It? Transnational Law And The Intelligence Mission, James E. Baker

Georgetown Law Faculty Publications and Other Works

The United States faces an immediate and continuous threat of terrorist attack using weapons of mass destruction, including nuclear weapons. The intelligence function and national security law, including international law--or more accurately transnational law--are central to addressing this threat. Indeed, international law is more relevant today in addressing this threat than it was before September 11. Part II of this article describes a continuum of contemporary threats to U.S. national security, with a focus on nonstate terrorism. Part III addresses the role of intelligence and national security law, and in particular law addressed to process, in combating these threats. Part …

When To Push The Envelope: Legal Ethics, The Rule Of Law, And National Security Strategy, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Documents, Leaks, And The Boundaries Of Expression: Government Whistleblowing In An Over Classified Age, Susan Nevelow Mart

Publications

No abstract provided.

The Rhetoric Of Necessity (Or, Sanford Levinson's Pinteresque Conversation), Kevin Jon Heller

Scholarly Works

It may seem odd to begin a discussion of whether the President should have the power to act extraconstitutionally in times of necessity with a quote from The Dwarves. As I researched this Comment, though, I could not escape the uneasy feeling that I was witnessing what could only be described as a Pinteresque conversation--a conversation in which Professor Levinson and his interlocutors, "while exchanging remarks apparently on a common topic, and using mutually comprehensible vocabulary, are revealed as experiencing a profound failure to communicate with one another." Professor Levinson wants to find a workable balance between constitutional restraints and …

Beyond Absolutism: Legal Institutions In The War On Terror, Peter Margulies

Law Faculty Scholarship

No abstract provided.

In The Service Of Secrets: The U.S. Supreme Court Revisits Totten, 39 J. Marshall L. Rev. 475 (2006), Douglas Kash, Matthew Indrisano

UIC Law Review

No abstract provided.

The Rhetoric Of Necessity (Or, Sanford Levinson's Pinteresque Conversation), Kevin J. Heller

Georgia Law Review

It may seem odd to begin a discussion of whether the President should have the power to act extraconstitutionally in times of necessity with a quote from The Dwarfs. As I researched this Comment, though, I could not escape the uneasy feeling that I was witnessing what could only be described as a Pinteresque conversation-a conversation in which Professor Levinson and his interlocutors, "while exchanging remarks apparently on a common topic, and using mutually comprehensible vocabulary, are revealed as experiencing a profound failure to communicate with one another."2 Professor Levinson wants to find a workable balance between constitutional restraints and …

The Emancipation Proclamation And The Commander In Chief Power, Michael S. Paulsen

Georgia Law Review

Levinson, a good Socratic teacher, poses the question what is the relationship of emergency or necessity to constitutional power, constitutional rights, and constitutional interpretation generally, and surrounds it with a characteristically fascinating discussion. But while his leanings are clear, he does not clearly answer the question his discussion poses. One can certainly infer that Levinson dislikes Carl Schmitt's legal theories of emergency, which he sees as justifying Hitler's rise to power. And it certainly comes through quite clearly that Levinson feels the same way about the U.S. Department of Justice's legal analysis concerning detention and interrogation of war prisoners (which …

Fighting Terrorism And Preserving Civil Liberties, James B. Comey

University of Richmond Law Review

No abstract provided.

Let The People Know The Facts: Can Government Information Removed From The Internet Be Reclaimed?, Susan Nevelow Mart

Publications

Ms. Mart examines the legal bases of the public's right to access government information, reviews the types of information that have recently been removed from the Internet, and analyzes the rationales given for the removals. She suggests that the concerted use of the Freedom of Information Act by public interest groups and their constituents is a possible method of returning the information to the Internet.

Small Emergencies, Kim L. Scheppele

Georgia Law Review

In this Comment, I argue that the "normal" American constitutional order can be seen as thoroughly shot through with emergency law and that this constant sense of emergency has fundamentally shaped the possibilities of American constitutionalism. America is now-and has been since the First World War-virtually always in a state of emergency, one way or another. Sometimes these states of emergency have been local, other times they have been federal, and still other times they have been international. Sometimes these states of emergency have been political; other times they have been economic or social. Sometimes these states of emergency have …

Time To Look Abroad? The Legal Regulation Of Emergency Powers, William E. Scheuerman

Georgia Law Review

The starting point for Professor Levinson's thought-provoking ruminations on emergency power and constitutionalism is his deep skepticism about the Bush Administration's legal response to 9/11.1 In the context of the "war on terror," Professor Levinson accurately recounts, the Administration has claimed the right to override both longstanding domestic and international legal commitments.2 Even strict prohibitions on torture, it seems, are not exempt from the President's constitutionally based prerogative as "Commander in Chief to keep the nation out of harm's way, and only he apparently possesses the rightful authority to determine the fate of accused terrorists. Although many constitutional lawyers will …

Questioning Deference, Christina E. Wells

Faculty Publications

This article examines the accepted axiom that courts should defer to the government's actions during national security crises even when such actions potentially violate citizens' constitutional rights. The paper questions two assumptions underlying that axiom - first, that executive officials are best equipped to determine when security needs justify liberty infringements and, second, that judges are particularly unqualified to meddle in security issues, even when civil liberties are involved. Relying on psychological theories regarding the role that fear plays in skewing risk assessment and historical analyses of past crises, the paper argues that times of crisis lend themselves to unnecessary …

Foreword - Interdisciplinary Perspectives On Fear And Risk Perception In Times Of Democratic Crisis (Symposium), Christina E. Wells, Jennifer K. Robbennolt

Faculty Publications

The articles and essays included or referenced in this volume discuss both the factors that affect decision making in times of crisis and their implications for law and democratic theory. Professor Cass Sunstein's keynote address, Fear and Liberty, noted that psychological biases such as the availability heuristic and probability neglect can skew risk perception, leading to excessive public fear of national security risks and unreasonable curtailment of civil liberties. According to Sunstein, courts, which are typically responsible for protecting civil liberties, often lack sufficient information to assess whether national security concerns justify incursions on civil liberties. Nevertheless, he concluded that …