Since 9/11 the U.S. government has been wrestling with the problem of how to deal with the terrorist threat on U.S. soil from al Qaeda and its affiliates. Many aspects of this problem, such as means of capture or targeted killing of suspected terrorists, interrogation techniques, and surveillance methods have been widely debated elsewhere. Here the focus is on the issue of preventive detention, which for the purposes of this article means detention of individuals suspected of being terrorists in order to forestall attacks in the post-9/11 era. This article focuses on the LOAC model of preventive detention and analyzes the legal framework, duration of LOAC detention, procedures for challenging that detention, and evolution of those procedures in the last ten years.
Neither the war on terror nor torture respects borders. A multinational effort is essential to achieve accountability. This article addresses two questions related to definitions and accountability. First, why is there a need for a consistent definition? One lesson from the Bush administration torture memos is the danger of differing definitions. This question is explored by comparing the U.S. approach with that of the International Criminal Tribunal for the former Yugoslavia (ICTY), and by examining other national laws and international bodies monitoring torture issues. The second question is: What are the current limitations on available remedies that impede consistent accountability for torture? The article examines criminal and civil options in the United States and in the international criminal tribunals as examples of what we have and what we lack.
Why does the government sometimes tie its own hands in national security operations? Much of the caselaw and scholarship concerning national security rests on the assumption that the executive branch is institutionally prone to overreach – that, left to its own devices, it will inch ever closer to the line that separates illegal from legal, and sometimes enthusiastically leap across it. This article argues that the government sometimes adopts self-restraints that limit its ability to conduct operations it regards as legally justified. The article tries to explain these restraints by consulting public choice theory – in particular, the notion that government officials are rationally self interested actors who seek to maximize their respective welfare.
Nearly a decade of dangerous incidents between U.S. and Soviet naval forces laid the groundwork for the negotiation and signing of the Incidents at Sea (INCSEA) Agreement in 1972. Citing the successes and benefits of INCSEA and the growing number of dangerous encounters between U.S. and Chinese forces in the Western Pacific over the past decade, experts in Beijing and Washington have increasingly argued that the time has come for the United States and the People’s Republic of China (PRC) to enter into a similar agreement. Although an INCSEA agreement could, in theory, reduce the possibility of miscalculation during un-alerted sea encounters between U.S. and Chinese naval and air forces, there are many reasons that the United States should not pursue such an arrangement.
Can the President and Congress Establish a Legislative Veto Mechanism for Jointly Drawing Down a Long and Controversial War?
To find a joint way to draw down the American troops in the war zone, Congress and the President may seek congressional mechanisms to resolve their differences with interactive processes. Then, constitutional issues arise as to whether a congressional mechanism may use a legislative veto – authorization for a drawdown with a reservation of power for a vote by the two Houses of Congress – so as to let the President draw down troop levels while reserving congressional power to stop that draw down. These issues illuminate war powers in the abstract; the issues also apply concretely to the main war of the 2010s, namely, the long war in Afghanistan.
From Executive Order to Judicial Approval: Tracing the History of Surveillance of U.S. Persons Abroad in Light of Recent Terrorism Investigations
After lengthy negotiations, numerous competing legislative proposals, and the expiration of its predecessor legislation, Congress passed the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008 (FAA) in July 2008, amending the FISA in several significant ways. To date, scholarship addressing the FAA has generally focused on aspects of the legislation other than the surveillance of U.S. persons overseas. This article examines the history of surveillance of U.S. persons overseas and the new provisions affecting such surveillance in light of several recent national security investigations indicating that an increasing number of U.S. persons are involved in terrorist activities.