Holder v. Humanitarian Law Project; 4 new GTMO transfers; forthcoming scholarship

1. Holder v. Humanitarian Law Project (S.Ct. oral argument was held yesterday)

This is the suit challenging the constitutionality of 18 USC 2339B (the 1996 material support statute). Oral argument was yesterday. For more insight, check out the brief podcasts (one by Peter Margulies of Roger Williams in defense of the statute, one by David Cole of Georgetown attacking the statute) provided by SCOTUSblog: http://www.scotusblog.com/2010/02/podcasts-holder-v-humanitarian-law-project/

2. More GTMO transfers

One unidentified GTMO detainee has just been transferred to Spain. Three (Saleh Bin Hadi Asasi, a native of Tunisia, Sharif Fati Ali al Mishad, a native of Egypt, and Abdul Rauf Omar Mohammad Abu al Qusin, a native of Libya) have just been sent to Albania. 188 detainees remain at GTMO.

3. Forthcoming Scholarship

National Security Case Studies: Special Case-Management Challenges

Robert Timothy Reagan

Federal Judicial Center

National security cases often pose unusual and challenging case-management issues for the courts. Evidence or arguments may be classified; witnesses or the jury may require special security measures; attorneys contacts with their clients may be diminished; other challenges may present themselves. The purpose of this Federal Judicial Center resource is to assemble methods federal judges have employed to meet these challenges so that judges facing the challenges can learn from their colleagues experiences. These case studies include background factual information about a selection of national security cases as well as descriptions of the judges challenges and solutions.The information presented is based on a review of case files and news media accounts and on interviews with the judges.

“Are We Safer from Terrorism? (No – But We Can Be)”

Yale Law & Policy Review, Vol. 28, No. 2, 2010
Washington U. School of Law Working Paper No. 10-01-01

BRIAN Z. TAMANAHA, Washington University School of Law in St. Louis
Email: btamanaha

This essay marks the fifth anniversary of the Intelligence Reform and Terrorism Prevention Act of 2004. It explores whether Americans are now safer from terrorism thanks to the reforms set forth in the Act, reforms taken from the recommendations the 9/11 Commission. The consensus of intelligence experts is that the fundamental problems with intelligence sharing and coordination that existed prior to 9/11 have not been resolved. This lack of progress was recently exposed in the Christmas Day (2009) attempt by an al Qaeda sympathizer to set off explosives in a plane landing in Detroit.

Intelligence failures are inevitable owing to entrenched practices and trade-offs inherent to intelligence work that cannot be eliminated through structural reforms. With the growth of anti-American radicalism, it is increasingly evident that Americans cannot be made safer from terrorism if the primary focus is on intelligence reform. The only long term solution is to reduce the supply of terrorists. This cannot be accomplished through military actions alone because these very military actions are fanning further radicalization, adding more recruits to the ranks of terrorists.

The provisions in the Act that propose to dampen anti-American extremism are absurdly inadequate because the 9/11 Commission and Congress failed to recognize the factors that fuel this extremism. To provide a deeper understanding, this essay elaborates on the remarkable reverse image that grips both sides in this conflict: Americans believe that Muslim extremists attacked America first, and continue to attack us, whereas Muslims targeting us believe that America attacked Muslims first, and continues to attack Muslims.

This essay was written by invitation of the Review to be paired (from contrasting perspectives) with a contribution from the first Director of National Intelligence, Ambassador John Negroponte.

“Distinguishing Military and Non-Military Superiors: Reflections on the Bemba Case at the ICC”

Journal of International Criminal Justice, Vol. 7, Issue 5, pp. 983-1004, 2009

NORA KARSTEN, affiliation not provided to SSRN

The article deals with the distinction between military and non-military superiors. As Article 28 of the Rome Statute sets forth different requirements of superior responsibility for military and non-military superiors, it has become necessary to distinguish between the two types of superiors. In the recent confirmation of charges decision in the Bemba case before the International Criminal Court, the Pre-Trial Chamber qualified Bemba as a military commander. The author analyses this decision and discusses the distinguishing features of military and non-military superiors and their appropriateness for the purposes of Article 28. The author argues that the military or non-military status of the superior is dependent on the unit or entity in which the superior is incorporated. A military commander may be defined as a superior in a unit whose underlying rationale is to act or be deployed as a party to an armed conflict, whereas a non-military superior belongs to an entity that does not have such a purpose.

Prolonged Armed Conflict and Diminished Deference to the Military: Lessons from Israel

Guy Davidov and Amnon Reichman (Hebrew University of Jerusalem – Faculty of Law and University of Haifa – Faculty of Law)

Law & Social Inquiry, 2010

We examine whether the level of deference shown by the Israeli Supreme Court to Military decisions has changed over time, by analyzing empirically the entire body of Supreme Court decisions in petitions against the Military Commander between 1990 and 2005. Setting forth a number of different factors which might generally impact the degree of deference towards State agencies, we hypothesize that when applied to the context of the relationship between the Court and the Military Commander during the examined period, a decrease in deference is expected. Our findings show that deference to the Military Commander has indeed diminished significantly. We argue that this is best explained by the continuation of the armed conflict (and its aftermath, namely the increase and routinization of petitions by the civilian population), and also – to some extent – by the rise of a substantive rule-of-law legal consciousness, central to which is the importance of human rights.

“‘Undead’ Wartime Cases: Stare Decisis and the Lessons of History”

Tulane Law Review, Vol. 84, 2010
UGA Legal Studies Research Paper No. 10-003

HARLAN GRANT COHEN, University of Georgia School of Law
Email: hcohen

References to the “lessons of history” are ubiquitous in law. Nowhere has this been more apparent than in recent debates over U.S. counterterrorism policy. In response to the Bush Administration’s reliance on World War II-era decisions – Johnson v. Eisentrager, Ex Parte Quirin, Hirota v. MacArthur, and In re Yamashita – opponents have argued that these decisions have been rejected by the “lessons of history.” They argue that the history of wartime cases is one marked by executive aggrandizement, panic-driven attacks on civil liberties, and overly quiescent courts – none of which should be repeated.

But what does it really mean to invoke the lessons of history? Is it merely a rhetorical device or should it have some role in determining the stare decisis effect of these old wartime cases? The fact that each of the four cases cited by the Bush Administration has since been set aside by the Supreme Court raises questions about whether stare decisis ever applied to them at all. Can the lessons of history answer those questions?

This Article explores the potential legal meanings of the “lessons of history.” It distinguishes and weighs a number of possible models for how history might be used: (1) history as facts complicating or undermining prior decisions; (2) history as precedent-replacement, with the judgments of Congress, the Executive, or others taking the place of that of judges; and (3) history as a vehicle for constitutional principles, like a fear of Executive aggrandizement in wartime or a belief that “the Constitution is not a suicide pact.” Using the four key cases here as examples – Quirin, Eisentrager, Yamashita, and Hirota – the Article examines the benefits and pitfalls of allowing courts to engage in each of these types of analysis. The result is a clearer understanding not only of how history should affect the fate of old wartime cases, but of the roles history can play more generally.

“Same Priorities, Different Perspectives: Tom Ridge and Michael Chertoff on Homeland Security”

Homeland Security Affairs, 2009
THE TEST OF OUR TIMES: AMERICA UNDER SIEGE…AND HOW WE CAN BE SAFE AGAIN, Thomas Ridge, Larry Bloom, eds., St. Martin’s Press, 2009
HOMELAND SECURITY, ASSESSING THE FIRST FIVE YEARS, Michael Chertoff, ed., University of Pennsylvania Press, 2009

STEPHANIE COOPER BLUM, Department of Homeland Security , University of Chicago Law School, Department of Defense, Navy, Naval Postgraduate School , Yale University
Email: scooper

Former Secretaries of the Department of Homeland Security Tom Ridge and Michael Chertoff have each published historical retrospectives on homeland security and their experiences leading the government’s newest department. In this review, Ms. Blum discusses the highlights of each book and provides a comparative analysis. While Ridge focuses on the politics of homeland security, his own internal struggles, and the state and local perspective, Chertoff focuses on placing Islamic terrorism in its proper historical context and the capabilities of the federal government to solve homeland security problems.

Lead Author

Robert M. Chesney
Robert M. Chesney is Charles I. Francis Professor in Law at UT-Austin School of Law. Chesney is a national security law specialist, with a particular interest in problems associated with terrorism. Professor Chesney recently served in the Justice Department in connection with the Detainee Policy Task Force created by Executive Order 13493. He is a member of the Advisory Committee of the American Bar Association's Standing Committee on Law and National Security, a senior editor for the Journal of National Security Law & Policy, an associate member of the Intelligence Science Board, a non-resident senior fellow of the Brookings Institution, a term member of the Council on Foreign Relations, and a member of the American Law Institute. Professor Chesney has published extensively on topics ranging from detention and prosecution in the counterterrorism context to the states secrets privilege. He served previously as chair of the Section on National Security Law of the Association of American Law Schools and as editor of the National Security Law Report (published by the American Bar Association's Standing Committee on Law and National Security). His upcoming projects include two books under contract with Oxford University Press, one concerning the evolution of detention law and policy and the other examining the judicial role in national security affairs.
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