Volume 63, Summer 2011, Issue 4

Introduction

AWAITING “THE AUTHORITIES”: 9/11 AND NATIONAL SECURITY DOCTRINE AFTER TEN YEARS 
John J. Farmer, Jr.
The challenge that the 9/11 conspiracy and attacks would pose to the United States‘ body of national security doctrine became apparent with the first reported hijacking. At 8:38 a.m., the Northeast Air Defense Sector (“NEADS”) in Rome, New York, received a call from the Federal Aviation Administration‘s (“FAA”) Boston Regional Center (“Boston Center”), advising that American 11 had been hijacked and requesting that fighter jets be scrambled from Otis Air Force Base to intercept the planeDownload PDF

Speeches

UNSETTLED FOUNDATIONS: TEN YEARS AFTER 9/11, LEGAL QUESTIONS AND PRACTICAL CHALLENGES OF HOW TO BATTLE TERRORISM REMAIN 
The Honorable Thomas H. Kean 
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DOES 9/11 JUSTIFY A WAR ON THE JUDICIAL BRANCH? 
John J. Gibbons
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THE DECLINE OF JUDICIAL DEFERENCE ON NATIONAL SECURITY 
Michael Chertoff
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THE CURRENT STATE OF HOMELAND SECURITY 
Ivan K. Fong
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Articles

TRANSCENDING, BUT NOT ABANDONING, THE COMBATANT-CIVILIAN DISTINCTION:
A CASE STUDY 

Alec Walen
The distinction between combatants and civilians is relevant to the law of war in three ways: it determines who can be prosecuted for using force, who can be subjected to long-­term preventive (as opposed to punitive) detention, and who can be killed even when they do not pose an imminent threat. The traditional law of war uses the first issue as the key to understanding the second two. In doing so, it relies on a basic legal symmetry. Those who are privileged to use military force cannot be prosecuted for having done so (at least as long as they respected the legal limits on the use of military force), but they can be fought with the basic tools of fighting a war: detaining or killing the forces on the other side. Meanwhile, those who are not privileged to use force may be prosecuted if they use it, but they may not be fought using the normal tools of warfighting. To be detained beyond a relatively brief period of pre-­trial or investigatory detention, they must be convicted of a crime. And to be killed, they must either pose an imminent and serious threat to others or have been convicted of a capital offense and sentenced to death. Download PDF

A SQUARE PEG IN A ROUND HOLE: STRETCHING LAW OF WAR DETENTION TOO FAR 
Laurie R. Blank
On March 7, 2011, President Obama issued Executive Order 13,567, providing for indefinite detention of approximately forty-eight detainees at Guantánamo Bay and possibly more in the future. Nearly a year after a Department of Justice-led task force called for indefinite detention “under the laws of war,” the Obama administration established periodic review and other procedures for such detention. The Executive Order, along with the Terrorist Detention Review Reform Act (“TDRRA”) proposed by Senator Lindsey Graham, has generated extensive discussion about the necessity for and benefits of providing such procedural rights to detainees, the merits of criminal prosecution versus military detention or trial,5 and other hotly-debated questions. Surely additional process is a positive step, one that can only improve the situation for those held in a sort of legal limbo without charge and without any ability to identify the end of the detention. But process alone cannot answer deeper questions about the lawfulness of an indefinite detention regime in general or the lawfulness of such detention for particular individuals. One key underlying question, therefore, is whether characterizing the detention of these forty-eight individuals—and likely others in the future—as “under the laws of war” is truly an accurate label. Download PDF

GUANTÁNAMO AND THE STRUGGLE FOR DUE PROCESS OF LAW 
Gary Thompson
At its core, the “Great Writ” of habeas corpus is the simple rule that an independent judge has the power to decide whether the government can detain an individual. In 1215, the ancient concept was given greater vitality on the field at Runnymede in England, when King John signed the Magna Carta and begrudgingly accepted that a king’s decision to detain an individual would be subject to “lawful judgment of his peers [and] the law of the land.” This was the very birth of the “separation of powers” that almost six centuries later would become fundamental to the U.S. Constitution, with all of its checks and balances between three co-equal branches. The writ of habeas corpus itself was enshrined into the Constitution and subject to suspension only in times of war, rebellion, or insurrection. President Abraham Lincoln briefly suspended the writ during a time of obvious rebellion, the American Civil War. More than 140 years later, President George W. Bush effectively suspended the writ indefinitely for the hundreds of men who had been shipped to GTMO, purporting to take back what King John gave up at Runnymede—the total, unquestionable power to detain a human being without oversight or evaluation by anyone.Download PDF

THE LAWS OF WAR AND THE KILLING OF SUSPECTED TERRORISTS:
FALSE STARTS, RABBIT HOLES, AND DEAD ENDS 

Nicholas Rostow
The variety of circumstances in which individuals and governments have used terror to advance their goals suggests there must be an array of lawful responses. While the justice system seems adequate on practical, as well as conceptual grounds, to deal with Timothy McVeigh and his ilk, how should states treat members of groups like Hamas or Hezbollah or al-Qaeda? Those entities fit on a spectrum of organizational maturity from governmental to armed band. They use terrorist tactics as a normal way of conducting hostilities because they offer the best chance of success at low cost to themselves. Counterterrorist operations, whatever their nature, are far more costly than terrorist operations. That is part of the nature of asymmetric warfare. Terrorism also creates a reputation for violence that by itself intimidates and thus helps achieve political or diplomatic goals. Download PDF

PROJECTING FORCE IN THE 21ST CENTURY – LEGITIMACY AND THE RULE OF LAW: TITLE 50, TITLE 10, TITLE 18, AND ART. 75 
Jeff Mustin & Harvey Rishikof
The Prussian strategist Carl von Clausewitz wrote that the first duty of the general and statesman is to understand the nature of the war upon which they are embarking. The modern battlefield has complicated this task. The United States military is currently conducting simultaneous counterinsurgency and counterterrorism operations in Afghanistan and Pakistan (“AF/PAK”), while the Central Intelligence Agency (“CIA”), traditionally more concerned with espionage than air warfare, has been conducting a robust aerial attack campaign in Pakistan‘s Northwest Frontier Province. Conventional military forces, special operations forces, and intelligence professionals are all operating in the same area of operations, trying to enact the same strategies to meet the same policy goals but using contradictory legal authorities to do so. Download PDF

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