The latest batch of forthcoming scholarship, with abstracts and links below the jump.
* “Striking First: Preemptive and Preventive Attack in U.S. National Security Policy” (RAND (Mueller, et al.))
* "Is Suspension a Political Question?” Stanford Law Review, Vol. 59, p. 333, November 2006 AMANDA L. TYLER George Washington University Law School
* “Thinking Outside the Border: Homeland Security and the Forward Deployment of the U.S. Border” Houston Law Review, Vol. 44 (forthcoming 2007) Gregory Bowman Mississippi College School of Law
* “Yes, Virginia: The President Can Deploy Federal Troops to Prevent the Loss of a Major American City from a Devastating Natural Catastrophe" U of Maryland Legal Studies Research Paper No. 2006-37
MICHAEL GREENBERGER University of Maryland - School of Law
* "Law and Terror" Policy Review, No. 139, October/November 2006 KENNETH ANDERSON Washington College of Law, American University, Stanford University - The Hoover Institution on War, Revolution and Peace * "Terrorism and the New Criminal Process" William & Mary Bill of Rights Journal, Vol. 15, 2007 JOHN T. PARRY Lewis & Clark College - Law School
* “Striking First: Preemptive and Preventive Attack in U.S. National Security Policy”
RAND (Mueller, et al.)
This is a just-published RAND monograph running to some 345 pages. Chapter 3 addresses jus ad bellum issues. The full text is posted here:
http://www.rand.org/pubs/monographs/2006/RAND_MG403.pdf
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* "Is Suspension a Political Question?”
Stanford Law Review, Vol. 59, p. 333, November 2006
AMANDA L. TYLER
George Washington University Law School
Email: atyler@law.gwu.edu
Auth-Page: http://ssrn.com/author=410427
Full Text: http://ssrn.com/abstract=949607
ABSTRACT: This article tackles a question heretofore virtually ignored by scholars and yet to be resolved by the Supreme Court - the justiciability of the Suspension Clause. Following the devastating attacks of September 11, the suspension power is no longer the exclusive province of academic debate. In the wake of those attacks, the Bush Administration apparently asked Congress to suspend the writ of habeas corpus to aid efforts aimed at combating terrorism. Now, five years later, this country is waging a War on Terrorism of indefinite duration and recent counterterrorism legislation has been argued by some to constitute a suspension of the Great Writ. Regardless of whether this legislation is in fact a suspension, the potential for additional terrorist attacks on American soil is unfortunately all too real, and there is good reason to believe that another attack would be met with a clear invocation of the suspension power by Congress. Accordingly, whether the judiciary could review the lawfulness of any such suspension could well be one of the most important legal issues to arise out of the War on Terrorism.
In the Supreme Court's recent Hamdi v. Rumsfeld decision, Justice Scalia suggested that the judiciary could not review an exercise of the suspension authority to ensure that Congress had not acted inconsistently with the conditions that the Constitution places on invocation of the suspension authority. (By its very terms, the Suspension Clause requires that there be an ?Invasion? or ?Rebellion? before Congress may suspend the writ.) This article disputes the conventional wisdom that suspension presents a nonjusticiable political question as reflected in Justice Scalia's Hamdi opinion as well as earlier suggestions to the same effect made by other jurists. The article explores why this view is misguided, highlighting the fact that it can not be reconciled with the purpose of the Suspension Clause, the separation of powers, and the core function of the institution of judicial review. Most principally, the article contends that resolving the justiciability of suspension turns on the purpose and history of the Great Writ as well as how it fits within our broader constitutional scheme. The historic link between the Great Writ and core due process safeguards leads inevitably to the conclusion that the internal predicates required for a valid suspension are inextricably intertwined with the core due process right and, just as protection of the latter has always been understood to fall within the core of the judicial role, the same must hold true for protection of the former. The unique status of the writ as a constitutional remedy and limitations on Congress's ability to compel courts to resolve cases in contravention of the Constitution likewise demonstrate that suspension is not a political question. Ultimately, suspension is indicative of many issues viewed generally as political: that certain legislative decisions are in some respects the culmination of political choices does not preclude a role for the courts in reviewing those choices for compliance with our constitutional values.
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* “Thinking Outside the Border: Homeland Security and the Forward Deployment of the U.S. Border”
Houston Law Review, Vol. 44 (forthcoming 2007)
Gregory Bowman
Mississippi College School of Law
Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=400520
Abstract: Following the September 11, 2001, terrorist attacks, the U.S. government implemented a number of inbound cargo security programs it described as “pushing the border outward” or “expanding [the U.S.] perimeter of security.” Are these statements rhetorical flourish, or do these programs materially affect international cargo trade? This article argues that far from being mundane or rhetorical, these cargo security programs are transforming how U.S. borders operate from both a conceptual and practical perspective. Specifically, by moving certain aspects of border functionality to locations well-removed from the physical U.S. border, these programs make U.S. regulation of inbound trade significantly more extraterritorial. These changes affect not only U.S. national security, but also the very patterns and growth of international trade in goods.
In order to fully explore this thesis, this article first summarizes these programs and analyzes them through the lens of early- and mid-twentieth century political geography, which is useful for evaluating the defensive rhetoric and actual structure of these programs. The jurisdictional and sovereignty aspects of these forward deployment efforts are then examined, with particular emphasis on efforts to multilateralize these cargo security programs. This article concludes that the extraterritorial aspects of these programs can be legally justified on a number of grounds. Multilateral support or consensus is the most readily apparent of these rationales, but even absent such multilateral support these programs can be defended on other bases, including that of unilateral, implied consent to these programs by U.S. trading partners and importers.
The article concludes by addressing the impact of these programs on global trade. In particular, these cargo security programs can be seen as permanently transforming U.S. inbound trade regulation from a primarily domestic regime to one for which extraterritoriality is a central feature. In the short term, this shift has led to greater U.S. control or influence over foreign commercial and regulatory activities, which is of course significant. In the long term, however, the effect of these programs will depend upon whether they become truly multilateral in application or remain largely bilateral or unilateral in effect. If they remain bilateral or unilateral, the short term status quo of greater U.S. extraterritorial reach will remain in place. If full multilateralization occurs, however, these programs could reduce or erase many of the current distinctions between domestic cargo shipments and international cargo shipments, as foreign regulatory regimes directly affect both international and U.S. domestic cargo shipments. As discussed in more detail in the article, such multilateral interconnectivity would significantly alter the nature of international trade in cargo.
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* “Yes, Virginia: The President Can Deploy Federal Troops to Prevent the Loss of a Major American City from a Devastating Natural Catastrophe"
U of Maryland Legal Studies Research Paper No. 2006-37
MICHAEL GREENBERGER
University of Maryland - School of Law
Email: mgreenberger@law.umaryland.edu
Auth-Page: http://ssrn.com/author=340636
Full Text: http://ssrn.com/abstract=946207
ABSTRACT: As a direct response to the lackadaisical and much criticized federal handling of Hurricane Katrina, a critical provision within the Fiscal Year 2007 Defense Authorization Act amended in October 2006 the Insurrection Act to allow the President to deploy Federal troops to respond to catastrophic natural disasters and other major domestic emergencies without a prior request from affected state or local governments. This amendment was passed over universal and bipartisan opposition by the Nation's governors, all of whom claimed that this provision upends the delicate balance between Federal and state responsibilities for responding to natural disasters. In fact, this amendment neither adds to the President's power, nor detracts from that of the states. The amendment applies only to major catastrophes where the resources of states and localities have been overwhelmed - situations to which the President has always had the power to respond. Yet uncertainty has often surrounded the President's power, and, as seen in Hurricane Katrina, this confusion has often caused devastating delays in its use. The amendment to the Insurrection Act merely clarifies the President's power and is fully supported by the Constitution.
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* "Law and Terror"
Policy Review, No. 139, October/November 2006
Contact: KENNETH ANDERSON
Washington College of Law, American University,
Stanford University - The Hoover Institution on
War, Revolution and Peace
Email: kanders@wcl.american.edu
Auth-Page: http://ssrn.com/author=235051
Full Text: http://ssrn.com/abstract=935394
ABSTRACT: This short policy article argues that both the Bush administration, in its final two years in office, and Congress have an obligation and interest in taking US counterterrorism policy beyond the current 'war on terror' operated on the basis of executive power and discretion, to comprehensively institutionalize it for the long term through Congressional legislation. It argues that the Military Commissions Act of 2006 is mistakenly aimed merely at satisfying the narrow requirements of the Hamdan decision, and is far from the comprehensive legislation that institutionalizing counterterrorism policy requires in order both to have democratic legitimacy with the American people and to have a permanency that goes beyond the discretionary whims of any particular administration. The article very briefly lists topics which comprehensive legislation would address - surveillance, detention, rendition, interrogation and the definition of torture, a domestic intelligence agency, classified information reform, military tribunals, a special civilian counterterrorism court, legal protections for interrogators and indemnities to detainees for mistakes, rules on uses of force short of armed conflict, the role and interpretation of international law in US counterterrorism policy, and Congressional oversight. But it argues that the underlying issue is one of principles to guide counterterrorism policy, and that what matters first in Congressional legislation is the enactment of American values through a democratic process; the advantages accruing to executive discretion and its approach to counterterrorism have now been exhausted. Given profound disagreement among Americans as to the proper balance of national security and civil liberties, and as to what concretely constitutes such things as torture, degrading treatment, etc., the only appropriate mechanism for resolving such deep disagreement in a democracy is to require legislators to vote on actual techniques of interrogation and intelligence gathering - in detail, specific descriptions, without euphemism or generalities. Is, for example, waterboarding always torture and therefore always forbidden? Anything less than such specificity - a key failing of the Military Commissions Act - dodges the question of democratic legitimacy. Let legislators raise their hands and vote on the specifics that enact America's values, and reveal where precisely, without abstraction or platitudes, they locate the necessary tradeoffs between security and liberties.
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* "Terrorism and the New Criminal Process"
William & Mary Bill of Rights Journal, Vol. 15, 2007
Contact: JOHN T. PARRY
Lewis & Clark College - Law School
Email: parry@lclark.edu
Auth-Page: http://ssrn.com/author=68608
Full Text: http://ssrn.com/abstract=938179
ABSTRACT: This article is a much revised and expanded version of a working paper that I posted a year or so ago. This revised version argues that the ?war on terror? has accelerated the development of a new criminal process and that this new process has increasingly displaced traditional methods of investigating, prosecuting, and punishing people who have engaged in conduct that is subject to criminal penalties - whether or not that conduct is considered ?terrorist? or not. I also contend that this new process is largely consistent with constitutional norms that are changing under the same pressures that drive the development of the new criminal process. Those pressures, in turn, derive not just from specific events but also from the perception of emergency and rapid change that characterizes modern society and political life.
Throughout the article, I treat the indefinite detention and trial by military commission of suspected terrorists as emblematic but not exhaustive of the new criminal process. Not only have these efforts been central to the Bush administration's anti-terror efforts, but they have also resulted in Supreme Court opinions - most recently the decision in Hamdan v. Rumsfeld - that bear on and to some degree constrain the development of the new criminal process. Despite their importance, however, these cases risk diverting attention from the ways in which the new criminal process has already expanded executive power, licensed state violence, and transformed the citizen-state relationship.
My analysis is indebted to Michael Hardt and Antonio Negri's influential books, Empire and Multitude, as well as to the pathbreaking work of Giorgio Agamben, whose Homo Sacer and State of Exception pose important challenges for liberal theory. Few U.S. legal scholars have made serious efforts to engage with this work. Nonetheless, these theorists say much that is useful about the nature and functions of law in modern states, and one of the goals of this article is to integrate their work with more familiar forms of legal analysis.
Part II of the article describes executive and congressional actions in the war on terror to illustrate the ways in which anti-terror efforts have changed since 9/11. These aspects of the new criminal process provide a legal structure for implementing the idea that everything has changed. They codify a state of emergency, but the perception of emergency should not be equated with panic. Many of these new processes were carefully planned.
And, although executive power has expanded, Congress has shown some willingness to second guess executive power claims and substitute its own judgment. The new criminal process is thus a deliberate, sturdy, and evolving construct for what are arguably exceptional times. The last section of part II considers the Supreme Court's response to some of these actions - a response that seeks with varying success to accommodate emergency claims with rule of law and due process values, but which in so doing also ratifies the idea of a war on terror.
Part III makes a short detour by presenting a more policy oriented assessment of the strengths and weaknesses of the new criminal process as compared to traditional processes. It also suggests that the ability to choose between the two is becoming increasingly difficult. Part IV explains why that is through an examination of ?everyday? constitutional criminal procedure doctrine, which reveals that doctrinal change has already brought us well down the road of the new criminal process. Part V concludes by discussing the relationship between the new criminal process and the idea of emergency power and suggesting that the new criminal process is simply part of a larger shift in state power and the practice of governing.
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