National Security Advisors

The Great OLC Document Dump of 2009

Courtesy of a colleague in the know, I came across this website, where DOJ has today posted a whole bunch of heretofore classified or otherwise undisclosed OLC opinions about lots of interesting war-on-terror and war-in-Iraq stuff, including the original November 2001 memo defending the constitutionality of military commissions, the controversial Goldsmith memo on the applicability of the Fourth Geneva Convention in Iraq, and a host of other goodies.

And twenty minutes before the AALS Prawfs (et al.) Happy Hour, to boot!

Lots of food for fodder, methinks.

A Critique of "National Security Courts"

Although I've written before about my concerns with the idea of "national security courts" for terrorism cases (including challenges to detention and trials for criminal offenses), we've already seen calls for such hybrid tribunals in the aftermath of the Supreme Court's decision 11 days ago in Boumediene, and I imagine those calls will only increase as the summer goes on.

With that in mind, I wanted to flag an important new statement out today from the Constitution Project's Liberty and Security Committee and its Coalition to Defend Checks and Balances, both of which are groups of fairly high-profile folks from all points along the political spectrum. The statement, titled A Critique of "National Security Courts," identifies some of the more serious flaws with such proposals, and ultimately takes a very skeptical view of their utility and their viability. [Full disclosure: I am the group's "Reporter."]

There's much more to be said about this debate, but given that almost all of the discussions out there thus far have been in favor, I thought I'd flag this important, dissenting view.

Law Professor Amicus Brief in Omar and Munaf

I'm extremely pleased (and, perhaps more importantly, relieved) to post a copy of the amicus brief filed today on behalf of a group of federal courts and constitutional law professors in the Iraqi detention cases currently before the Supreme Court -- Geren v. Omar and Munaf v. Geren.  I had the privilege of co-authoring the brief along with Judith Resnik (Yale) and a team of lawyers from Davis Polk...

I've written a lot about these cases before, both on the blog and in print. In a nutshell, the brief argues that the Supreme Court's habeas jurisprudence, though not always completely consistent, has evolved in such a manner so as to produce a series of principles that support the exercise of jurisdiction in both of the current cases (although the brief takes no position on the merits).

Framing Homeland Security

View my following paper, Framing Homeland Security

Abstract:    
In discussing homeland security and terrorism, it is necessary to work with clear definitions of the terms and concepts that frame this strategy. One of the greatest hindrances to a cogent discussion of terrorism and counter-terrorism has been that the terms lack clear, universal definitions. Strategic analysis must begin with clearly articulated and precise definitions of terrorism, counter-terrorism, and homeland security, as proposed in this article.

To that extent, the recommended definition of terrorism is: acts of politically based violence aimed at innocent civilians with the intent to cause physical harm, including death, and/or conducting psychological warfare against a population aimed at intimidating it from conducting its daily life in a normal fashion.

Ultimately, there are many approaches that we could take to define terrorism. We could look at the definitions currently employed domestically and abroad. We could look to academic debate on the subject. We could consider the inverse of terrorism in other words, define first what terrorism is not. We could also try to craft a definition that encompasses all of the terrorist groups and individuals our government is currently targeting or has captured in the War on Terror.

The recommended definition captures the core elements of terrorism in clear and concise language. In reviewing scholarship and terrorists' writings, the overwhelming impression is that causing harm (physical or psychological) to the innocent civilian population is the central characteristic of terrorist action. The available literature articulates that harming civilians is the most effective manner from the terrorist mindset¿ to effectuate their goals.

While causing death or injury to the innocent civilian population is the means to the end, I also suggest that intimidation of the population is of equal importance from the terrorist perspective. The emphasis whether resulting in death, injury, property damage, or intimidation is the attack, in whichever form, on the innocent civilian population. Accordingly, we must develop counter-terrorism policies that protect the innocent civilian population for whose protection and safety the government is responsible.

In addition, the importance of impacting daily life cannot and should not be underestimated. Terrorism is a daily grind; it must be understood in the context of daily attacks rather than one-time, dramatic-effect attacks (such as 9/11). Smaller, more frequent attacks, while perhaps less dramatic, have a much greater long-term effect on an innocent civilian population than does a one-time major event whose undeniable short-term effects may not linger. In that vein, the proposed definition emphasizes the effect on the daily life of an innocent civilian population and the commensurate requirement for the state to respond to the continuous, constant threats that represent modern-day terrorism.

Cross-posted on AIDP Blog.

Learn more information about my casebook Global Perspectives on Counterterrorism here.

For more information on this and related news see The Volokh Conspiracy.