The Escalating Ties Between Middle Eastern Terrorist Groups and Criminal Activity Remarks by David T. Johnson, Assistant Secretary of State for International Narcotics and Law Enforcement Affairs, at the Washington Institute for Near East Policy.
Domestic Terror: the Worry about Homegrown Plots,” Newsweek, November 20, 2009.
Peter Fromuth has posted an ASIL Insight on The European Court of Justice Kadi Decision and the Future of UN Counterterrorism Sanctions.
Dawinder S. Sidhu (Center for Justice, Law & Society) has posted Judicial Review as Soft Power: How the Courts Can Help Us Win the Post-9/11 Conflict (American University – National Security Law Brief) on SSRN. Here is the abstract:
The American military efforts in Afghanistan and Iraq are not yielding desired results and, even assuming they were, such military success would not be sufficient to prevail in the war against transnational terrorism. The United States must engage in the battle of hearts and minds in order to achieve meaningful safety and a lasting respite from the specter of terrorist activity. To participate in this more intangible, intellectual battle, the United States will need to utilize its “soft power,” or its ability to draw nations or peoples towards its policy preferences through attraction, as distinct from “hard power,” in which foreign conduct is shaped by military or economic coercion. The question becomes what soft power resources are available to — and may be credibly invoked by — the United States?
This Article argues that the American constitutional design, particularly its commitment to the rule of law, is an aspect of soft power that, if communicated externally, will attract moderate Muslims and others to American interests and help quell the reach and appeal of terrorists bent on destroying the United States. Such “legal soft power” will resonate with the international audience only if we adhere to fundamental American principles in actuality — they must be more than mere platitudes. Accordingly, I suggest that the Supreme Court’s robust evaluation of individual rights claims in the post-9/11 context demonstrates that the judiciary has been faithful to the rule of law even in times of national crisis and stress. It is not the outcomes that necessarily shows this, but the genuine process within which federal actions may be challenged.
If it is the case that the rule of law may be an element of soft power conceptually and that the judicial decisionmaking has honored it in practice, then it would benefit American national security interests if others in the world were made aware of the American constitutional scheme, one of separation of powers and judicial review, and the Supreme Court’s fidelity to the Constitution in times of war. Such information may make it more likely that other nations and peoples will be attracted to American interests. In an odd sense, the judicial branch may be a positive instrument of foreign policy and a beneficial tool in America’s current war — even if it strikes down executive or legislative actions in the government’s prosecution of the war itself.
Markus D. Dubber (University of Toronto – Faculty of Law) has posted The War on Terror and U.S. Criminal Law on SSRN. Here is the abstract:
This paper addresses the question of what impact the so-called “new security agenda against terrorism” has had on substantive criminal law in the United States. This question has a simple answer: None.
There is nothing new about the so-called War on Terror, except for a redesignation of its object, from Crime to Terror. The mode of governance, its essence as a “security agenda,” remains unchanged. The War on Terror is another, contemporary, manifestation of a mode of penal governance that regards itself as emanating from the sovereign’s power to police, understood here in the traditional sense of the power to maintain the peace, or, in Blackstone’s phrase, the sovereign’s power as “pater-familias of the nation” to see after “the public police and oeconomy,” i.e., “the due regulation and domestic order of the kingdom.” The security agenda against terrorism, in this sense, is neither “new,” nor can it have an “impact” on American criminal law, simply because it is American criminal law, and always has been.
CRS – Navy Irregular Warfare and Counterterrorism Operations: Background and Issues for Congress
Somalia and the Pirates – David Anderson, Rob de Wijk, Steven Haines, Jonathon Stevenson
The North African Franchise: AQIM’s Threat to U.S. Security – CPT Russell J. Isaacs. Strategic Insights
Bilateral Cooperation and Bounded Sovereignty in Counter-Terrorism Efforts – Bidisha Biswas. Border Policy Research Institute, Western Washington University
Combating International Terrorism: Turkey’s Added Value – James Ker-Lindsay and Alastair Cameron, eds. Royal United Services Institute
United Nations Security Council Resolution 1540 at the Crossroads: The Challenges of Implementation – Michael Ryan Kraig. Stanley Foundation
Michael Kent Curtis (Wake Forest University – School of Law) has posted The Klan, the Congress, and the Court: Congressional Enforcement of the Fourteenth And Fifteenth Amendments & the State Action Syllogism, A Brief Historical Overview (University of Pennsylvania Journal of Constitutional Law, Vol. 11, No. 1398, 2009) on SSRN. Here is the abstract:
A Court committed to protecting constitutional rights and protecting citizens against political terrorism could reasonably have upheld congressional power to reach private acts of terror designed to deter or punish the exercise of constitutional rights. It could have done so while also protecting the values of federalism. While the Justices at the time reached a restrictive result, the Congress, that included a number of framers of the Fourteenth Amendment, did not. Recent Court decisions have chosen the decision of the Justices who considered constitutionality of the response to political terror over the decision of most of the framers of the Amendment.
Peyton Cooke (Univ. of Alabama – Law) has posted Bringing the Spies in from the Cold: Legal Cosmopolitanism and Intelligence under the Laws of War (Univ. of San Francisco Law Review, forthcoming). Here’s the abstract:
Recently, as never before, intelligence operations have come under international humanitarian law. The Supreme Court has handed down the Hamdan and Boumediene decisions; President Obama has required the CIA and other interrogators to abide by Geneva Conventions Common Article 3 standards for all interrogations; district courts have declared stringent law of war criteria for overseas detentions; the Executive has applied the laws of war to terrorist targeting; and the private groups which have initiated this litigation, and pressed for these changes, continue to
work for even more reform. This paper addresses the roots and effects of such changes. It begins by defining its key term – legal cosmopolitanism – with reference to a wide variety of legal materials, from Eric Posner, the European Court of Human Rights, and others. The paper attempts to illuminate that term’s core parts: a belief in an expanded United States demos, and preference for judicial over political power. The paper then continues with a survey of intelligence law. It illuminates the assumptions of a limited demos and unfettered executive that have until recently underlay intelligence law domestically, and goes on to establish that, in the long history of intelligence, no international law standard has heretofore been successfully applied to these operations. Thus legal cosmopolitanism and intelligence seem opposed, one attempting to expand the demos, with the other depending to some extent on limiting the demos.
Nevertheless, recent executive and judicial actions affecting intelligence law have displayed strong and recognizable cosmopolitan underpinnings. The aforementioned executive orders, district court decisions, and policy positions reinforce this point, as a thorough survey of them reveals. Moreover, the history of similar legal initiatives in the uniformed military and elsewhere indicates that United States intelligence agencies will likely instantiate changes beyond even what the executive and courts require. Finally, the paper will conclude by suggesting that we view these changes – and the legal revolution they promise – skeptically. Intelligence has always operated apart from the law. If we bring intelligence operations within the law, they may no longer be able to protect us from what lurks without.
Beth A. Simmons (Harvard Univ. – Government) has posted Civil Rights in International Law: Compliance with Aspects of the ‘International Bill of Rights’ (Indiana Journal of Global Legal Studies, Vol. 16, no. 2, pp. 437-481, July 2009). Here’s the abstract:
International law has developed what many might consider a constitutional understanding of individual civil rights that individuals can claim vis-a-vis their own governments. This paper discusses the development of aspects of international law relating to civil rights, and argues that if this body of law is meaningful we should see evidence of links between acceptance of international legal obligation and domestic practices. Recognizing that external forms of enforcement of civil rights is unlikely (because not generally in the interest of potential “enforcers”), I argue that international civil rights treaties will have their greatest effect where stakeholders – local citizens – have the motive and the means to demand treaty compliance. This is most likely to be the case not in stable autocracies, where such demands are likely to be crushed, nor in stable democracies, where the motive to mobilize is attenuated due to rights saturation, but in transitional countries where the expected value of mobilization is maximized.
Thus, I test the hypothesis that the International Covenant on Civil and Political Rights is likely to have its greatest positive effects in transitional countries – those that have had some fleeting experience with democratic governance. This proposition is tested quantitatively with indicators for freedom of religious practice and fair trials. The proposition is weakly supported by extremely stringent statistical models that control for the endogeneity of the treaty commitments, country and year fixed effects, and other obvious influences on civil rights practices. I conclude that the International Bill of Rights has the power to influence the direction of rights practices in fluid political situations, but cannot magically transform autocracies into liberal guarantors of civil liberties. Still, these effects are important, and the most we can expect from scraps of paper which the international community has been reluctant to enforce.
Ralph Wilde (University College London – Faculty of Laws) has posted Complementing Occupation Law? Selective Judicial Treatment of the Suitability of Human Rights Norms (Israel Law Review, Vol. 42(1), pp. 80-100, 2009) on SSRN. Here is the abstract:
This Article offers a critical evaluation of the treatment of the suitability of applying human rights law to occupation situations offered by the English House of Lords in the Al-Skeini judgment of 2007. Al-Skeini concerned the application of the European Convention on Human Rights (ECHR) to the United Kingdom in Iraq. In the decision, the majority asserted that the application of human rights law would amount to a form of “imperialism” in requiring an occupying State to impose culturally inappropriate norms in occupied territory. They also found that its application would undermine the status quo norm contained in
occupation law, by obliging an occupying State to transform the legal system in occupied territory in order to bring it in line with the human rights standards in play. This Article argues that these two assertions are based on a mistaken understanding of the substantive meaning of human rights obligations in occupation situations, and the effect on this meaning of the interface with other areas of international law. It is suggested that the fear of “human rights imperialism” is, as articulated here, misconceived; that applying human rights law to occupation situations may not actually involve breaching the law of occupation; and that in any case a more sophisticated approach to the question of clashes in normative regimes needs to be adopted.
Geoffrey S. Corn (South Texas College of Law) has posted Mixing Apples and Hand Grenades: The Logical Limit of Applying Human Rights Norms to Armed Conflict (Journal of International Humanitarian Legal Studies, forthcoming). Here’s the abstract:
One of the most complex contemporary debates related to the regulation of armed conflict is the relationship between international humanitarian law (or the law of armed conflict) and international human rights law. Since human rights experts first began advocating for the complimentary application of these two bodies of law, there has been a steady march of human rights application into an area formerly subject to the exclusive law of armed conflict regulation. While the legal aspects of this debate are both complex and fascinating, like all areas of conflict regulation the outcome must ultimately produce guidelines that can be translated into an effective operational framework for war-fighters. In an era of an already complex and often confused battle space, there can be little tolerance for adding complexity and confusion to the rules that war-fighters must apply in the execution of their missions. Instead, clarity is essential to aid them in navigating this complexity.
This article will explore this debate from a military operational perspective. It asserts the invalidity of extreme views in this complementarity debate, and that the inevitable invocation of human rights obligations in the context of armed conflict necessitates a careful assessment of where symmetry between these two sources of law is operationally logical and where that logic dissipates. While acknowledging a legitimate role for human rights norms in relation to the treatment of noncombatants and subdued opposition personnel, I argue that these norms cannot be permitted to influence the legal framework that regulates the application of combat power against operational opponents. Preventing this intrusion is essential to balance the interest of protecting human rights with the fundamental purpose of armed hostilities – securing the prompt and efficient submission of an opponent. Perhaps the most critical premise of this article is that failing to recognize the existence of this boundary will produce a distortion of this historic authority/restraint balance at the core of the law of armed conflict – a distortion that will inevitably be perceived as operationally illogical by armed forces thereby risking the credibility of both bodies of law.
Matthew C. Waxman (Columbia Law School) has posted The Use of Force Against States that ‘Might’ Have Weapons of Mass Destruction (Michigan Journal of International Law, Vol. 31, No. 1, 2009) on SSRN. Here is the abstract:
The Iraq war rekindled debate – a debate now further inflamed in discussions of Iran and North Korea – about the legal use of force to disarm an adversary state believed to pose a threat of catastrophic attack, including with weapons of mass destruction (WMD). Collidingwith this debate is the stark fact that intelligence about hostile states’ WMD capabilities is and will remain limited and uncertain. This Article examines the following question: How should international legal rules on the use of force handle this intelligence gap? In answering that question, this Article advances two arguments. First, it argues that amid such intelligence uncertainty, a “reasonable necessity” approach to international self-defense doctrine, based on objective standards, is superior to the two main competing schools of thought: the “traditional view,” which holds strictly that only the U.N. Security Council may authorize legal force against WMD proliferates absent an imminent and specific threat of attack, and the “unilateralist” school, which holds that states retain a broader right of preemptive self-defense. Second, it argues that a reasonable necessity approach – and its reliance on objective standards – helps focus analysis on key evidentiary issues that have so far eluded serious study in scholarship on the legal use of force and that are relevant to ongoing debates about alleged WMD proliferation by Iran, North Korea and other states.
Curtis A. Bradley and Jack Landman Goldsmith III (Duke University – School of Law and Harvard University – Harvard Law School) have posted Foreign Sovereign Immunity and Domestic Officer Suits on SSRN. Here is the abstract:
Under international law, official-capacity suits brought against a foreign state’s officers are treated as suits against the state itself and thus as subject to the state’s immunity, even in suits alleging human rights abuses. This immunity regime differs from the immunity regime that applies in the United States in suits brought against state and federal officials for violations of federal law. Despite the
federal government’s sovereign immunity and the immunity of state governments under Eleventh Amendment jurisprudence, courts often allow suits against federal and state officers for their official actions. This essay attempts to explain why the immunity rules differ between the two regimes. We begin by showing that the differential treatment of foreign and domestic officer suits has deep roots in British and American common law. We then show that Congress has not acted to alter this common law backdrop, and we explain the significance of this fact. Finally, we discuss functional reasons for the long-time differential treatment of suits against domestic and foreign officials.
Matthew C. Waxman (Columbia Law School) has posted Guantánamo, Habeas Corpus, and Standards of Proof: Viewing the Law Through Multiple Lenses (Case Western Reserve Journal of International Law, Forthcoming) on SSRN. Here is the abstract:
The Supreme Court held in Boumediene v. Bush that Guantánamo detainees have a constitutional right to habeas corpus review of their detention, but it left to district courts in the first instance responsibility for working through the appropriate standard of proof and related evidentiary principles imposed on the government to justify continued detention. This article argues that embedded in seemingly straightforward judicial standard-setting with respect to proof and evidence are significant policy questions about competing risks and their distribution. How one approaches these questions depends on the lens through which one views the problem: Through that of a courtroom
concerned with evidence or through that of a battlefield clouded by imperfect intelligence. All three branches of government should play significant roles in answering these questions, which are critical to
establishing sound detention policy.
Yuval Shany (Hebrew University of Jerusalem – Faculty of Law and Institute of Criminology) has posted Human Rights and Humanitarian Law As Competing Legal Paradigms for Fighting Terror (COLLECTED COURSES OF THE ACADEMY OF EUROPEAN LAW, HUMAN RIGHTS AND INTERNATIONAL HUMANITARIAN LAW, VOL. XIX/1, Orna Ben Naftali, ed., Forthcoming) on SSRN. Here is the abstract:
In a recent article on the interplay between international law and politics, Marti Koskenniemi wrote that “much about the search for political direction today takes the form of jurisdictional conflict, struggle between competing expert vocabularies, each equipped with a specific bias” and that “[p]olitical intervention is today often a politics of re-definition, that is to say, the strategic definition of a situation or a problem by reference to a technical idiom so as to open the door for applying the expertise related to that idiom, together with the attendant structural bias.” The “war on terror” in the first decade of the Twenty First Century exemplifies such political struggles over the governing legal paradigm. Not only is the meaning of the term “terrorist” itself controversial; the legal framework governing the fight against terrorism is also highly contested, and features an intense struggle between a human rights centered “law enforcement” paradigm and a more aggressive humanitarian law based “armed conflict” paradigm. Describing the paradigm struggle in Koskenniemic terms not only reveals, once again, the potential for the strategic use of the law; it also exposes the meta-differences between human rights law and humanitarian law. The considerable political capital and legal efforts invested in jockeying between the two competing paradigms casts doubt on the increasingly common narrative of the growing merger between human rights law and humanitarian law and the irrelevance of distinguishing between the two. Moreover, it is now clearer than before that the ideological tensions between the two camps supporting the competing paradigms cannot be avoided even if a mixed paradigm were to be developed to govern the fight against terror (as is increasingly alleged). Such a development may simply lead to the channeling of the same ideological struggles that had been held over the choice of paradigm to disagreement on the contents and direction of the new mixed paradigm.
In Part One of this Chapter, I describe the jurisdictional struggle between the two principal legal paradigms that purport to regulate the international fight against terror: The law enforcement and the armed conflict paradigms. Arguably, many disagreements concerning the lawfulness of specific counter-terrorism, such as targeted killings or detention without trial, are actually disagreements on the applicable legal framework and the stories on the nature of the threat of terrorism that is being offered.
In Part Two, I consider the emergence of a mixed paradigm which borrows contents from both human rights law and humanitarian law. I argue that such normative cross-over illustrates the difficulty of maintaining rigid paradigmatic distinctions in light of the complexities of the fight against terror; but also that some key differences in emphasis between the two paradigms nonetheless remain. Most significantly, I argue that the development of a new mixed paradigm merely re-contextualizes preexisting jurisdictional struggles over the proper legal framework to govern the fight against terror. Part Three concludes.
The Lift - Legal Issues in the Fight against Terrorism 