nationalsecuritylaw Forthcoming Scholarship

* Forthcoming Scholarship

Still a Bad Idea: Military Commissions Under the Obama Administration

David W. Glazier
Loyola Law School Los Angeles

Although Senator Obama was critical of the Bush administration’s military commissions, President Obama surprised many observers by reviving the trials. Congress then enacted the Military Commissions Act of 2009, improving their procedural fairness including a categorical ban on statements obtained through torture and cruel, inhuman, or degrading treatment. The new statute largely quieted previous criticism and support has grown for commission use in preference to federal courts. This article argues that the commissions remain badly, if not fatally, flawed in both procedure and substantive law. The bar against evidence obtained through coercion is ineffective, for example. Prosecutors seem determined to use such evidence, purporting to rely on commission judges as gatekeepers. But the adversarial commission process then shifts the effective burden of keeping the evidence out to the defense, which is substantially impeded by government control of information about interrogations, abuse of classification rules, and lack of good faith discovery. Other procedural issues include the multiple roles allowed the civilian convening authority, denial of defense representation by counsel of choice, and the inequality of resources and access to evidence between prosecution and defense. Issues with the substantive law being applied are even more significant, with serious defects in almost all offenses prosecuted to date. The most common charges, conspiracy and providing material support to terrorism are not recognized violations of the law of armed conflict which would make them prohibited ex post facto enactments. Other offenses have serious problems as applied, being used to prosecute suspected terrorists on the basis of their status as unprivileged belligerents rather than for conduct violating the law of war. These factors may result in commission verdicts being overturned during judicial review; they will surely undermine the trials’ credibility and enhance support for America’s adversaries.

Journal of National Security Law & Policy, Volume 4 Issue #2 (2010)

The new issue of JNSL&P is now out, and as always well-worth a read. You probably already have a subscription ($30) already, but just in case here are the contents of the latest issue:

One Lantern in the Darkest Night: The CIA’s Inspector General
Ryan M. Check & Afsheen John Radsan

The Laws of War as a Constitutional Limit on Military Jurisdiction
Stephen I. Vladeck

The Choice of Law Against Terrorism
Mary Ellen O’ Connell

Balancing Security and Liberty in Germany
Russell A. Miller

Security First? Patterns and Lessons from China’s Use of Law To Address National Security Threats
Jacques deLisle

The International Standardization of National Security Law
Kim Lane Scheppele

The Sacrificial Yoo: Accounting for Torture in the OPR Report
David D. Cole

A Knowledgeable Insider Warns of the Challenges in Shaping Counterterrorism Policies
(reviewing Skating on Stilts: Why We Aren’t Stopping Tomorrow’s Terrorism by Stewart A. Baker)

John H. Shenefield


The Principle of Proportionality Under International Humanitarian Law and Operation Cast Lead

Robert Perry Barnidge Jr.
University of Reading – School of Law

NEW BATTLEFIELDS/OLD LAWS, William C. Banks, ed., Columbia University Press, September 2011

This chapter critically examines the principle of proportionality under international humanitarian law and contextualizes its vulnerabilities by looking at Israel’s actions during Operation Cast Lead in the Gaza Strip between December 27, 2008, and January 18, 2009. It begins by providing a black letter law overview of the principle. Although widely accepted, the proportionality principle suffers from significant shortcomings that impact its usefulness as a predictable tool for distinguishing between the lawful and the unlawful, particularly in the context of asymmetrical warfare. These shortcomings exist at both a theoretical level, in the abstract, and at a practical level. To focus these discussions, the second half of this chapter looks at the largely negative international reaction to Israel’s actions during Operation Cast Lead. This reaction, which was, and has been, typically couched with a feigned certainty that belies and leaves unanswered the theoretical shortcomings of the principle of proportionality, suggests that, more often than not, proportionality acts as the ultimate exemplar of law used instrumentally, as a tool to further a particular politics and paradigm of power.

Excerpted from the forthcoming: New Battlefields/Old Laws edited by William C. Banks scheduled for publication in September 2011. Copyright (c) 2010 Columbia University Press. Used by arrangement with the Publisher. All rights reserved.

"Use and Misuse of Evidence Obtained During Extraordinary Renditions: How Do We Avoid Diluting Fundamental Protections?"

NSU Shepard Broad Law Center Research Paper

VICTOR HANSEN, New England Law | Boston
Email: vhansen

This article considers and questions the ways in which grand schemes of rights infringement such as extraordinary rendition can translate into specific but also corrosive questions of accommodation in the law of evidence. This article enables us to see the extents to which questions considered to be either ‘grand’ or ‘minor’ in the context of counter-terrorism and human rights protections are, in fact, inter-connected. The article focuses on the use of information obtained from detainees who were subjected to extraordinary rendition. The article examines how the information obtained during these periods of extraordinary rendition might be used in any subsequent criminal prosecutions of the detainees. The article explores the rules in both U.S. Federal Court and the Military Commissions which govern the admissibility of evidence obtained during extraordinary renditions and questions whether evidence obtained under this practice should be admissible in any subsequent prosecutions of the detainees. The paper examines the likely corrosive impact that the use of this evidence could have on fundamental due process protections and concludes that while the admissibility of this evidence is problematic in any forum, trying these suspects in federal court is the best option available.

"Scholars and Security"

Perspectives on Politics, Vol. 8, No. 4, p. 1095, 2010

PAUL BRACKEN, Yale School of Management
Email: paul.bracken

A reset of relations between academia and the US security community is needed to manage an increasingly dangerous international order. Concerns about Pentagon co-optation of academia pale in comparison to continued reliance on a loosely associated collection of DoD, the intelligence community, Congressional staffers, contractors, and Washington based think tanks for strategic thinking. Few have noticed how the intellectual base of US defense and security thinking has concentrated geographically to inside the Washington beltway. In contrast, the analytical structures of thought leadership in World War II and the Cold War had a much broader intellectual base, drawing from wider segments of American life.

The paper explores several case studies of the changing market for thought leadership in US security thinking, arguing that a decisive factor reshaping it in the past has been the degree of peril and risk. As the evident danger grew, thinking became more serious and focused. We are, once again, on the cusp of such a change in the locus of US thinking.

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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