forthcoming scholarship

* Forthcoming scholarship

North Dakota Law Review Symposium, COMPLYING AND FLYING: LEGAL AND TECHNICAL ISSUES RELATING TO THE OPERATION OF UNMANNED AERIAL SYSTEMS

ARTICLES

Judging Myopia in Hindsight: Bivens Actions, National Security Decisions, and the Rule of Law

Peter Margulies
Roger Williams University School of Law

Roger Williams Univ. Legal Studies Paper No. 88

Recent decisions on Bivens claims in the war on terror have defined extremes of deference or intervention. Cases like Iqbal and Arar display a categorical deference that rewards officials’ myopia. The Arar court painted officials as choosing between two stark scenarios: rendering a suspected terrorist to Syria or letting him board a plane to complete his supposed plot. On the other hand, courts in Padilla v. Yoo and al-Kidd v. Ashcroft manifested an equally categorical interventionism. Yoo and al-Kidd mangled the doctrine of qualified immunity, which the Supreme Court crafted to insulate officials from judges’ hindsight bias.

To break with the categorical cast of both deferential and interventionist decisions, this Article proposes an innovation-eliciting approach. Inspired by remedies for cognitive bias and regulatory failure, it gives officials a stake in developing alternatives to both overreaching and abdication. Officials who can demonstrate they have implemented alternatives in other contexts that are both proportional and proximate in time to the instant case buy flexibility and dismissal of the lawsuit before the qualified immunity phase. By leveraging officials’ experience and expertise, the innovation-eliciting approach tames the “pendular swings” in policy that Justice Kennedy in Boumediene viewed as undermining both liberty and security.

"Typology of Conflict: Terrorism and the Ambiguation of the Laws of War"

GNLU Law Review, Vol. 2, No. 1, 2010

JACKSON NYAMUYA MAOGOTO, University of Manchester
Email: jacksonmaogoto
GYWNN MACCARRICK, affiliation not provided to SSRN

One of the reasons that terrorism is unconventional and viewed as beyond the pale is because it adopts an arbitrary stance. War is the predictable and directed waging of armed conflict against an enemy, where as terrorism can not be anticipated or calculated because it’s ominous and malevolent actions do not discriminate between the enemy and civilians. In deed the greater the number of civilian casualties the greater the prominence they bring to their political cause. The distinction here is that we can seek to place limits on war because both sides agree to the terms under which they fight and both stand to gain from the benefits of limitation. But acts of terror rely upon the absence of limitation (including the absence distinction, proportionality, military necessity) for psychological impact such that there is no mutual benefit of placing constraints or confines on actions taken. Thus terrorism has passed over the parameters of warfare and into the realm of criminal conduct or alternatively it is employing the methods of warfare with a criminal intent. It seems therefore that terrorists should either be thought of as criminal behavior, in which case they might be accused of violating criminal law, or they should be thought of as acting within the scope of war and peace, in which case they might be accused of violating either the law of war or the law of peace. However, they do not seem to fall clearly in either scenario thus despite being law violators, they have situated themselves in an impossible place, located somewhere outside of the law.

"It Came from Beneath the Twilight Zone: Wiretapping and Article II Imperialism"

Texas Law Review, Forthcoming
Minnesota Legal Studies Research Paper No. 10-12

HEIDI KITROSSER, University of Minnesota – Twin Cities – School of Law
Email: hdk

This Article was written for the 2010 Texas Law Review Symposium: National Security, Privacy, and Technological Change. Using the example of federal government wiretapping, the Article examines “exclusivist” invocations of evolving U.S. history. Exclusivity is the view that the President has a constitutional power to circumvent statutory restrictions that interfere with his judgment as to how best to protect national security. In addition to arguing from text, structure, and founding era history, exclusivists sometimes invoke post-founding, or evolving history to defend their position. In the case of the Bush Administration’s warrantless wiretapping program, for example, the administration and its supporters argued that presidents since FDR had wiretapped in the absence of, or even contrary to, statutory authority. This Article first describes the logic of such arguments. It finds that exclusivists, often by implication though sometimes explicitly, discern a historical trend toward congressional acquiescence and presidential initiative, and deem this trend to reflect the natural capacities and hence respective legal prerogatives of the political branches. Alternatively or in addition, exclusivists deem this trend to reflect longstanding support by Congress and Presidents for an exclusivist reading of the Constitution. Second, the Article critiques these exclusivist arguments. The Article deems the former argument to rest on a fundamental mistake that runs throughout much exclusivist reasoning. That is, the argument conflates the President’s structural capacities with a legal prerogative to exercise those capacities in the face of statutory limits. The Article deems the latter argument historically inaccurate in the context of wiretapping. Congressional hearings and other legislative records indicate that exclusivity was virtually absent from political debates over wiretapping, even during wartime, until relatively late in the 20th Century. This second error, too, stems from an exclusivist tendency to conflate structural capacity with legal prerogative. Congress’ structurally driven inertia lends itself to inaction while the President’s structural capacities lend themselves to self-initiation. Exclusivists wrongly interpret this pattern as reflecting an affirmative embrace of exclusivity by the political branches. Finally, this Article makes the descriptive point that exclusivity has made remarkable strides in attaining public, political, and legal respectability over the past few decades. By increasingly influencing legislation, legislative history, and executive branch arguments in the past few decades, exclusivists have themselves become part of the story of the imperial presidency.

Studies in Intelligence Volume 54, Number 1 (March 2010)

“The Post 9/11 Intelligence Community: Intelligence Reform, 2001–2009: Requiescat in Pace?