1. Idris v. Obama (D.D.C. Oct. 6, 2009)
Judge Lamberth has granted the government’s motion to dismiss a habeas petition brought on behalf of GTMO detainee Idris, on the ground that counsel lacks authorization to represent Idris. The opinion, posted here, emphasizes that Idris on five occasions refused to meet with counsel.
2. Forthcoming scholarship
“Rebalancing U.S. Foreign Policy: The State Department and Congressional Fellowships”
Travis Sharp
Center for Arms Control and Non-Proliferation
[This one is not exactly a national security law piece at first glance, but upon further reflection the legislative dynamics it depicts may be quite pertinent to NSL issues. Anyway, this is very interesting stuff.] [From the intro] In the late 1940s, Senator Arthur Vandenberg, Republican of Michigan, played an instrumental role in mobilizing Congress to support the Marshall Plan and the North Atlantic Treaty Organization, the twin pillars of U.S. policy in Europe after World War II. State Department officials in the Truman administration felt a special affinity for Vandenberg, whose position as chairman of the Senate Foreign Relations Committee enabled him to spread his internationalist views within the then-isolationist Republican Party. Yet George Kennan, head of the State Department’s policy planning staff, was not quite as impressed. On the matter of European recovery, Kennan later wrote, Vandenberg “deserved credit no doubt for having supported it, but no more than we deserved for having proposed it.” Kennan added: “I could not accept the assumption that Senators were all such idiots that they deserved admiring applause every time they could be persuaded by the State Department to do something sensible.”Kennan’s acidic observation perfectly crystallizes the scorn with which the State Department sometimes views Congress. The feeling is often mutual. A 2002 survey by the Una Chapman Cox Foundation found that congressional staff members view the State Department as “arrogant” and “insufficiently responsive,” characteristics which limited State’s ability to enlist support for its policy and budgetary priorities on Capitol Hill.2 Stanley Heginbotham, a former director of foreign policy at the Congressional Research Service who wrote extensively on State-Congress relations, observed that “The political cultures of the executive-branch foreign-policy arena and the congressional arena are fundamentally different.” Thus, he concluded, “Interbranch foreign-policy making efforts are likely to be strained and conflictive because the operating norms of the two systems are incompatible.”3 The problem Heginbotham diagnosed has now become a full-fledged crisis.
While bureaucratic decentralization at State and increased partisanship in Congress have certainly contributed to the predicament, the U.S. military’s encroachment into an increasing number of foreign policy missions since the end of the Cold War is the primary cause of the State-Congress crisis. This “militarization of diplomacy” has negatively impacted both congressional perceptions of State’s efficacy and State’s ability to secure adequate funding from Congress.4 The Department of Defense (DOD) now receives funds for programs that duplicate efforts traditionally carried out by the State Department and the U.S. Agency for International Development (USAID). According to data from the Organization for Economic Cooperation and Development, DOD provided four percent of overall U.S. development aid assistance in 1998; by 2005, its share had risen to 22 percent.5USAID lost approximately 1,300 permanent positions, 37 percent of its total staff, between 1990 and today.6 In fiscal year 2010, the United States will spend about 13 times more on its military than on diplomatic operations and aid, even though their respective functions are equally important to accomplishing U.S. foreign policy objectives.7
Although DOD is a much larger organization than the State Department, DOD’s growing control over U.S. foreign policy is partly attributable to its highly organized and efficient legislative operations, which are far superior to those of State and allow the Pentagon to dominate the zero-sum game of congressional budgeting. At the present time, DOD is much more committed than the State Department to its congressional fellowship programs, which send mid-career personnel to work in Congress and are considered career-enhancers by young military officers. The Pentagon plans to quadruple (to a total of 100) the number of military fellows serving in Congress by 2009 as part of a complete revamping of its legislative affairs office, the office’s first restructuring in almost 20 years. In contrast, the State Department only sends 10 to 12 Foreign Service Officers to Congress each year as part of its Pearson congressional fellowship program.
For every Pearson fellow working on Capitol Hill, there are 10 military fellows. This disparity is unacceptable. The military’s more effective use of lobbying and relationship-building on the Hill has allowed it to invert Prussian military theorist Carl von Clausewitz’s famous dictum—politics has now become a continuation of war by other means. It is time for the State Department to reclaim its proper place alongside DOD as a chief incubator and executor of U.S. foreign policy. The State Department must act now to increase the prestige of its own congressional fellowships and at least double the number of Foreign Service Officers working on the Hill. Otherwise, it risks being completely overrun by DOD’s expanded legislative affairs activities.
Thomas M. Cooley Law Review, Vol. 25, p. 503, 2009
CHAD G. MARZEN, Engles, Ketcham, Olson & Keith, P.C.
Email: marzen@alumni.grinnell.edu
The issue of liability for terrorism and supporting terrorism in American domestic courts is one of the most active issues of current judicial decisionmaking in the area of foreign affairs. Through the state-sponsored terrorism exception to the Foreign Sovereign Immunities Act and the Alien Tort Statute, liability extends to foreign governments (in the FSIA context) and to foreign governments, nonstate actors, or nonstate actors acting under color of law (under the ATS) when they provide support to terrorist activities.
In an October 2007 decision, the Second Circuit Court of Appeals in the Khulumani case held that a defendant is liable through aiding and abetting liability under international law when the defendant 1) provides practical assistance to the principal which has a substantial effect on the perpetration of the crime, and 2) does so with the purpose of facilitating the commission of the crime. Although the state-sponsored terrorism exception to the FSIA and Alien Tort Statute impose an aiding and abetting liability standard, courts have construed both quite differently. In the FSIA context, courts such as the Fourth Circuit Court of Appeals in the Rux v. Republic of Sudan case have embraced a relaxed aiding and abetting liability standard, resembling a strict liability standard. This standard applies in cases where a foreign defendant has allegedly materially supported acts of terrorism, and also collapsed the knowledge and intent requirements for aiding and abetting liability into a single judicial inquiry – whether a State “materially supported” the action in fact, irrespective of knowledge or intent. However, under the Alien Tort Statute, in the 2007 Eastern District of New York Almog decision the Court adopted a clear two-step inquiry of an actus reus and mens rea prong of determining aiding and abetting liability.
In this essay, I propose that in cases involving terrorism or terrorist activities, courts should employ a two-step judicial inquiry: first, an actus reus component of whether a State gave “substantial material support” to terrorist activities in cases falling under the state-sponsored terrorism exception to the Foreign Sovereign Immunities Act, and with the Alien Tort Statute, cases when a nonstate actor, foreign government, or nonstate actor acting under color of law aids and abets an organization which commits terrorist attacks and activities. Second, a mens rea component would question whether the actor knowingly acts that facilitates the commission of terrorist activity. To adopt such an inquiry not only best effectuates the objects and purposes of both statutes, but gives the Judiciary a vibrant role in addressing the worldwide war on terrorism.
U of Chicago, Public Law Working Paper No. 276
ERIC A. POSNER, University of Chicago – Law School
Email: eric_posner@law.uchicago.edu
ADRIAN VERMEULE, Harvard University – Harvard Law School
Email: avermeule@law.harvard.edu
Tyrannophobia – the fear of dictatorship – is a dominant theme in American political discourse. Yet dictatorship has never existed in the United States or even been likely.The hypothesis that tyrannophobia itself has prevented dictatorship from occurring is implausible; better evidence exists for alternative hypotheses. We conclude that tyrannophobia is an irrational political attitude that has interfered with, and continues to interfere with, needed institutional reform.
Journal of Conflict & Security Law, Vol. 13, Issue 2, pp. 191-213, 2008
CARLO FOCARELLI, affiliation not provided to SSRN
The question about possible remedies, including military intervention, to avoid or to put an end to massive violations of human rights committed by a state towards its own citizens or in situations where state authorities critically lack effectiveness has been extensively debated since the issuance in 2001 of the report of the International Commission on Intervention and State Sovereignty (ICISS) on the responsibility to protect. After a succinct and critical review of the ICISS’ report and the subsequent international instruments dealing with the responsibility to protect, this contribution focuses on the positions adopted by states, especially over the last three years at the General Assembly and at the Security Council of the United Nations on humanitarian intervention as a ‘corollary’ of the responsibility to protect doctrine. It appears that humanitarian intervention aimed at implementing the responsibility to protect is not only feared as imperialistic by several weak states, but it also significantly fails to find an unconditioned support even amongst the most powerful states. Given its extreme and multifaceted ambiguity, which is discussed in the last section of this contribution, the innovative content of the purported ‘emerging norm’ on the responsibility to protect, as well as its prospect to emerge in the future, remain rather unclear.
“A Corporate Alternative to United Nations Ad Hoc Military Deployments”
Journal of Conflict & Security Law, Vol. 13, Issue 2, pp. 215-232, 2008
MALCOLM PATTERSON, University of Sheffield – Department of Psychology
Email: m.patterson@shef.ac.uk
The history of United Nations peacekeeping is frequently one of failure. The causes are endemic, persistent and unlikely to be remedied. It seems reasonable to consider two ideas in response: whether ad hoc peacekeepers might be augmented or even replaced by competent contract labour; and whether well-trained contractors might in future subdue by force those who inflict gross human rights abuses on others. Alternatives to ad hoc forces are not new. Nevertheless, theoretical or practical substitutes have not been evaluated alongside the merits of a private corporation supported by a business model. Military contractors are frequently represented as an affront to states’ authority. This is misleading. There has never been a clear divide between public and private resources in armed conflict and states have always employed both. There exists no compelling reason in law why the UN should not devise modern contracts that evolve from historically ubiquitous arrangements amongst its members and their more ancient predecessors. Formidable hurdles remain. Nonetheless, the deployment of disciplined, professional contractors under rigorous conditions may offer improvements on present standards of peacekeeping. This would enable the Security Council to better address its Charter responsibilities and, in particular, the Preamble and its admonition on war.
“The ‘Protection of Nationals’ Doctrine Revisited”
Journal of Conflict & Security Law, Vol. 13, Issue 2, pp. 233-271, 2008
TOM RUYS, Catholic University of Leuven (KUL) – Faculty of Law
Email: tom.ruys@law.kuleuven.ac.be
Legal scholars as well as states have long disagreed on the compatibility with the UN Charter of the so-called ‘protection of nationals’ doctrine. This doctrine suggests that states are allowed to forcibly intervene in other countries for the protection of their nationals abroad, subject to the following (cumulative) conditions: (i) there is an imminent threat of injury to nationals; (ii) a failure or inability on the part of the territorial sovereign to protect them and; (iii) the action of the intervening state is strictly confined to the objective of protecting its nationals. This article re-examines the available evidence in customary practice, while taking account of two new elements: on the one hand, the increased tolerance on behalf of the international community vis-à-vis unauthorised evacuation operations, and, on the other hand, the critical attitude of many states throughout the UN General Assembly debate on diplomatic protection in 2000. After finding that customary evidence fails to offer conclusive answers, the author makes some tentative suggestions de lege ferenda to find a way out of the existing legal impasse.
“Courts of Armed Opposition Groups: Fair Trials or Summary Justice?”
Journal of International Criminal Justice, Vol. 7, Issue 3, pp. 489-513, 2009
SANDESH SIVAKUMARAN, affiliation not provided to SSRN
Email: sandesh.sivakumaran@nottingham.ac.uk
Courts of armed opposition groups are a frequent feature of internal armed conflicts. The Frente Farabundo Martí para la Liberación Nacional of El Salvador, Liberation Tigers of Tamil Eelam of Sri Lanka and Revolutionary United Front of Sierra Leone all conducted trials in courts they convened. These courts are often criticized for failing to afford fair trial guarantees. This article takes a look at these courts and assesses the criticisms made of them, identifying precisely which due process guarantees are applicable in time of internal armed conflict and how they are interpreted. The article goes on to address the legitimacy of these courts and whether the international community should engage with them, considering some of the advantages and disadvantages engagement brings.
“The Targeted Killing of Salah Shehadeh: From Gaza to Madrid”
Journal of International Criminal Justice, Vol. 7, Issue 3, pp. 617-631, 2009
SHARON WEILL, affiliation not provided to SSRN
On 22 July 2002, an Israeli Air Force plane dropped a one-ton bomb on a densely populated residential neighbourhood in Gaza City. The military objective of this operation was to kill Hamas’ military leader in the Gaza Strip, Salah Shehadeh. More than six years later, in Madrid on 29 January 2009, Judge Fernando Andreu Merelles opened a criminal investigation against seven Israeli political and military officials for allegedly committing a war crime – and possibly a crime against humanity – in that operation. The basis of jurisdiction claimed was universal jurisdiction. As the same facts have been reviewed by different legal authorities in Israel, this case provides us with some considerations on the extent and applicability of the principle of subsidiarity.