National Security Law Forthcoming Scholarship

By

* forthcoming scholarship

"Drone Attacks Under the Jus ad Bellum and Jus in Bello: Clearing the ‘Fog of Law’"

Yearbook of International Humanitarian Law, Forthcoming

MICHAEL N. SCHMITT, Durham University – Department of Law
Email: schmitt

This article explores the legal issues raised by the use of drones (unmanned aircraft systems) in armed conflicts. In particular it assesses such use from the perspective of the jus ad bellum, that component of international law governing the resort to force by States, and the jus in bello (or international humanitarian law), the international law governing how such force may be applied. It concludes that the law of self-defence provides a clear basis for the extraterritorial use of drones under the jus ad bellum, albeit with certain key limitations. As to the use of drones on the battlefield, the article finds no significant basis for treating drones differently than other weapon systems under the jus in bello. Rather, the key is strict fidelity to the extant norms of international humanitarian law.

"Suing Government Lawyers for Giving Dubious Legal Advice in a National Security Crisis: Notes on How (Not) to Become a Banana Republic"

Yale Law School, Public Law Working Paper No. 229

PETER H. SCHUCK, Yale University – Law School
Email: peter.schuck

Given as a keynote address to a conference on "Official Wrongdoing and the Civil Liability of the Federal Government and Officers" convened by St. Thomas University Law School, this short paper discusses the public interest in vigorous affirmative decisionmaking by government officials, especially "street-level bureaucrats," an interest protected by official immunity doctrine. I first explain the different incentive effects that liability rules tend to create for public and private actors, and then argue that the post-9/11 environment has increased the risk that public officials operating in the national security area will be over-deterred in ways that may jeopardize the public interest. I then explore these issues, and the law of official immunity, in the specific context of the pending Bivens action brought by terrorist Jose Padilla against John Yoo, an author of the so-called "torture" memos. I conclude that the district judge wrongly denied Yoo the immunity, that the Ninth Circuit should reverse that decision, that personal liability is a perverse method for seeking to hold public officials in Yoo’s situation accountable for erroneous legal advice (if that’s what it was), and that the existing official immunity, properly understood and applied, should prevent courts from being used to exact political vengeance for unpopular legal interpretations in areas of legal uncertainty.

"A New Twist on an Old Story: Lawfare and the Mixing of Proportionalities"

Case Western Reserve Journal of International Law, Vol. 43, No. 3, 2011
Emory Public Law Research Paper No. 11-149

LAURIE R. BLANK, Emory University School of Law
Email: lblank

The claim that a just cause erases any wrongs committed in war is an old story, just like the opposite claim that an unjust cause renders all acts unlawful. International law has traditionally reinforced a strict separation between jus ad bellum – the law governing the resort to force – and jus in bello – the law governing the conduct of hostilities and protection of persons during conflict. Nonetheless, we see today a new twist on this old story that threatens the separation between jus ad bellum and jus in bello from the opposite perspective. In essence, there is an ever-louder claim that excessive civilian deaths under jus in bello proportionality render an entire military operation unjust under jus ad bellum.

Protection of civilians is a central purpose of international humanitarian law and media coverage of conflict and civilian deaths is critical to efforts to minimize human suffering during war. However, insurgent groups and terrorists exploit this greater focus on civilian casualties to their own advantage through tactics often termed lawfare, such as human shields, perfidy and other unlawful tactics. Not only do they seek greater protection for their fighters, but they also use the resulting civilian casualties as a tool of war. This article analyzes the growing use of alleged violations of jus in bello proportionality to make claims of disproportionate force under jus ad bellum. In doing so, it highlights the strategic and operational ramifications for combat operations and the impact on investigations and analyses of IHL compliance and accountability. Ultimately, this new twist on an old story has significant consequences for the application of IHL, for decisions to use force, and for the implementation of strategic, operational and tactical goals during conflict. Most of all, it places civilians in increasing danger because it encourages tactics and strategies that directly harm civilians.

"The Pentagon Papers Case and the Wikileaks Controversy: National Security and the First Amendment"

Wake Forest Journal of Law and Policy, 2011
GWU Legal Studies Research Paper No. 552
GWU Law School Public Law Research Paper No. 552

JEROME A. BARRON, George Washington University – Law School
Email: jbarron

This Essay focuses on two clashes between national security and the First Amendment – the Pentagon Papers case and the WikiLeaks controversy. The two cases are hardly exact parallels. In the Pentagon Papers case the government was seeking to enjoin publications, asking for the imposition of a prior restraint. In that context, the press received the benefit of the "heavy presumption" against prior restraints. In the WikiLeaks controversy, because the discussion centers on the possibility of a criminal prosecution against Julian Assange, there is no equivalent "heavy presumption" against such a prosecution. In each case, the actual leaker was arrested, but, in the Pentagon Papers case, the publishers were not prosecuted. Assange has not yet been the subject of a U.S. criminal prosecution, but it may happen.

The newspaper press is obviously an addressee of the First Amendment, but an issue remains as to whether a website such as WikiLeaks is part of that press. Furthermore, Assange and WikiLeaks seek to challenge the very idea and practice of government secrets altogether. Such a claim is unlikely to receive full First Amendment protection.

"Targeted Killing Court: Why the United States Needs to Adopt International Legal Standards for Targeted Killings and How to Do So in a Domestic Court"

MICHAEL ROBERT EPSTEIN, Journal of International Law
Email: epstei22

In light of the fact that the Obama Administration appears committed to continuing and expanding the use of drones and targeted killing as a primary counter-terrorism method, addressing both domestic and international concerns about the legality of our drone use is no simple task. Much has been written on the topic, and various definitions and interpretations of international law have been proposed; in order to address all of these concerns simultaneously while balancing the obvious reality that drone strikes will not stop anytime soon, I propose that a domestic judicial mechanism is required. Part I of this paper demonstrates the continuing development and use of drone technology, and the international criticism and debate it has sparked. Part II of this paper examines the history of targeted killings and drone strikes. Part III of this paper examines the past and current U.S. policy regarding targeted killings and drone strikes, including justifications under domestic and international law. Part IV analyzes international legal standards, and attempts to grasp “what law applies” in the gray area of counter-terrorism targeted killings. Part V compares Israel’s history and policy of targeted killings and drone use, and analyzes the first prominent judicial opinion regarding the use of targeted killings as a counter-terrorism tool. Part VI proposes a domestic U.S. Court designed to deal with the international and domestic concerns about the questionable legality of targeted killings.

The proposed court is intended to address the basic problem confronting the continued use of drones: how do we protect our citizens and ensure our national security under international law against threats posed by non-state actors who follow no laws or rules, while simultaneously retaining our credibility abroad and at home?

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