At JNSLP’s Feb. 11, 2015 symposium on “Trials and Terrorism: The Implications of Trying National Security Cases in Article III Courts,” an expert panel was convened to discuss trends in sentencing considerations in Article III terrorism prosecutions, and what the implications for these cases portend for american foreign policy. The panel consisted of a judge, a government official and former prosecutor, academics, and sentencing experts.
Nathan Sales poses the question whether technology could have played a preventative role in the recent wave of security leaks. He first reviews the existing legal frameworks for adjudicating cases of criminal security leaks, and he finds only limited utility in these paradigms. He then proposes a technological supplement to these frameworks, an alternative he finds useful only for select categories of leaks.
Jennifer Marett investigates the little-known position of National Security Council Legal Advisor. Drawing on a wide range of historical material as well as interviews with several previous holders of the position, Marett traces its roles and responsibilities from inception through the current administration. She concludes by identifying several contemporary institutional challenges affecting this important intelligence community role.
Summing up their history of the statutory Inspector General at the CIA, the authors conclude that “The ‘independent watchdog’ of a statutory IG did not expose major shortcomings that otherwise would have gone unnoticed. Nor did the watchdog play a major role in deterring institutional sloth and excess. In certain cases, however, the IG asserted independence that might not have been possible without Section 403q. Again, the results for the statutory IG may charitably be described as ‘mixed.'”
The Justice Department’s Office of Professional Responsibility (OPR) excoriated the legal work done by John Yoo and Jay Bybee of the Office of Legal Counsel on the torture memos, but DOJ’s ultimate decision stopped short of referring Yoo and Bybee for professional discipline. Serious questions remain, particularly since the OPR was unable to obtain the testimony of many high-level officials who played critical roles in authorizing torture. A full-scale investigation, preferably by an independent commission not part of the very department implicated in the wrongdoing, is still necessary. Great Britain conducted such an independent inquiry into the abusive practices used against IRA prisoners in the 1970s, and the United States must do the same. The essential lesson must be that torture and cruel treatment are not policy options, even when lawyers are willing to write opinions blessing illegality.