Our latest issue of the Journal of National Security Law & Policy
is now accessible
online.
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This issue includes articles by Ryan M. Check, David
D. Cole, Jacques deLisle, Russell A. Miller, Mary Ellen O'Connell, John
Radsan, Kim Lane Scheppele, John H. Shenefield, and Stephen I.
Vladeck.
“The ‘independent watchdog’ of a
statutory IG did not expose major shortcomings that otherwise would have
gone unnoticed. Nor did the watchdog play a major role in deterring
institutional sloth and excess. In certain cases, however, the IG
asserted independence that might not have been possible without Section
403q. … The results for the statutory IG may charitably be described
as ‘mixed.’”
“It is impossible to have a meaningful debate
over whether a civilian court or a military commission is a more
appropriate forum for trying terrorism suspects so long as serious
questions remain over whether the commissions may constitutionally
exercise jurisdiction over particular offenses and/or offenders.
And yet, although a number of defendants have attempted to challenge the
jurisdiction of the military commissions – especially under the MCA
– none of their cases have managed to produce a decision on the
merits from any court higher than the Court of Military Commission Review
(CMCR). Instead, the federal courts have generally relied on
“abstention” doctrine, holding that challenges to the
commissions, including to their jurisdiction, can – and should
– be resolved on post-conviction appeal. … [T]he time has
long since passed for a careful explication of the issues, ! the relevant
precedents, and the most likely answers.”
“The assessment of facts to determine if
peacetime law or the law of armed conflict is the correct choice involves
the same analysis used in resolving other choice of law questions.
Lawyers and judges constantly make choice of law decisions. Choice of law
is part of the consideration of every legal matter. ... In the terrorism-related
cases discussed [here], international law ... determines the choice of
law. In these cases, choice of international law sends us, generally, to
the domestic criminal law of the United
States, Pakistan,
Yemen,
and other states. It does not send us to the law of armed
conflict.”
“The practical consequence of the Constitutional Court’s
balancing approach to maintain both security and liberty has been a
shifting jurisprudence, a fact that is bound to buoy and bother American
conservatives and progressives in equal measure. There is something in
the Court’s cases for both camps. Before 9/11, the Court deferred
to the legislature’s attempts at promoting security. This
inclination, however, changed dramatically in the post-9/11 period. In a
string of cases the Court has consistently invalidated national security
legislation for failing to adequately take account of constitutionally
protected liberty interests.”
“China’s legal approach
to national security threats, and emergency situations in general, is
more complex and subtle and thus richer in implications for comparative
law and for understanding transnational legal influence. ... Given China’s
sheer scale and international importance, its legal reaction to any major
issue is a substantial part of the worldwide response. China’s
discussion, adoption, and use of legal means to address identified
dangers – especially terrorism – have invoked concerns
familiar from post-9/11 developments elsewhere and have engaged
international legal norms, including ones that emerged in the wake of
9/11 and others that predated and survived it. The Chinese example thus
does, or at least should, matter.”
“Seen from the great height of global
comparison, the number of new anti-terrorism laws that criminalize
terrorism, block terrorism financing, develop new international
monitoring mechanisms to spot terrorists, and increase vigilance about
the international movements of persons is extraordinary. Up close,
however, widespread compliance [with the Security Council Resolution 1373
framework] looks less like a tightly coordinated strategy than diverse
variations on a theme.”
"The Justice Department's Office of
Professional Responsibility (OPR) excoriated the legal work done by John
Yoo and Jay Bybee of the Office of Legal Counsel on the torture memos,
but DOJ's ultimate decision stopped short of referring Yoo and Bybee for
professional discipline. Serious questions remain, particularly since the
OPR was unable to obtain the testimony of many high-level officials who
played critical roles in authorizing torture. A full-scale investigation,
preferably by an independent commission not part of the very department
implicated in the wrongdoing, is still necessary. Great Britain conducted such an
independent inquiry into the abusive practices used against IRA prisoners
in the 1970s, and the United
States must do the same. The essential
lesson must be that torture and cruel treatment are not policy options,
even when lawyers are willing to write opinions blessing
illegality."
“Stewart Baker has written an enthralling, yet
alarming, account of the difficult road we as country have traveled since
9/11. Part memoir of a veteran senior government official, part lesson in
interdepartmental infighting and bureaucratic power games, part
philosophical musing on technology’s benefits and potential costs,
and part vigorous advocacy enlivened by saucy humor and snappy prose,
Baker’s book summons us to think hard about how new technologies
– air travel, computer functionality, biotechnology –
jeopardize our lives and our way of life even as they also promise to
brighten our futures.”
