AIDP Blog

See my article, International Law: Where Have we Been; Where are we Going?, published in Univesity of Pennsylvania Journal of International Economic Law.

Abstract:     
The need to operationalize international law from the perspective of the commander is, I suggest, an absolutely critical requirement of academics, policy-makers, human rights organizations, and military commanders (junior and senior alike). Otherwise, the commander will be stuck with yesterday’s rules in today’s – and tomorrow’s – conflict. The inherent unsuitability of these rules to the conflict will both make public international law increasingly irrelevant from the perspective of the single most important practitioners – the commanders – and will do a fundamental disservice to those who most critically need its protection – innocent civilians. The innocent civilian is entitled to international humanitarian law protections. That is obvious. If the individual is a combatant and therefore meets criteria to be defined as legitimate target then, all bets are off, with the caveat that the soldier must act when dealing with this combatant in accordance with the critical principles of international law: proportionality, alternatives, military necessity, and collateral damage. But what is the solider to do when the scenario is in the hazy, foggy middle that defies easy categorization and classification? The extremes are easy, the middle is complicated. Classic international law and international humanitarian principles are clear with respect to the former; I suggest they are unhelpful regarding the latter. Unfortunately, operational counterterrorism is most complicated in the haze that is all but inevitable when facts are unclear, how is the soldier to act? Relying on time-honored principles developed in different operational contexts may not provide sufficient guidelines. 

Cross posted in National Security Advisors

Read my article, Religious Extremism: A Fundamental Danger, published in South Texas Law Review. 

Abstract:

 Terrorism constitutes one of the gravest threats against democratic societies in the 21st century; in particular, religiously motivated terrorism. Why is this the case? There are many reasons. Religion is a powerful motivator for both positive social change and mass violence. It is a force in society that is difficult for many in a secular society to truly understand. It is an institution that is protected in civil society, whether by a state’s own Constitution or international agreements

Given that religious violence constitutes such a grave threat to democracies, governments must begin to examine this institution more critically than they have in the past. Governments are charged not only with protecting civil liberties, like freedom of or from religion, but with protecting their citizens from internal and external threats. This Article discusses the framework modern democratic governments must begin to institute if they are to protect freedom of religion and effectively respond to a unique threat to safety. Five countries – the United States, the United Kingdom, Turkey, Israel and the Netherlands – will be examined. My primary thesis is that civil societies cannot afford to continue to treat religion as an “untouchable” subject – we must begin to understand what religion is in order to know when and how it may be appropriately limited for the benefit of society.

Cross Posted in National Security Advisors

I was recently interviewed by Patty Satalia, a journalist with WPSU a PBS and NPR affiliate.  The interview was approximately one hour long (divided into segments) and questions ran the gamut from a discussion of the challenges the President will face in closing Guantanamo, to lessons from the CIA memos.  We also discussed similarities and differences between President Bush and President Obama, the role of the courts and Congress in these debates, and other related topics. 

The interview is available for viewing at http://conversations.psu.edu.  Readers who want to offer feedback can also comment on the “discussion board” immediately below the videos.  I look forward to hearing your comments. 

Cross posted at LawandTerrorism.com

I was recently interviewed regarding President Obama’s decision to close the Guantanamo Bay detention facility. The interview is 15 minutes long.

The interview can be heard here:
http://gsmcneal.blip.tv/file/2171326/

Or if the link doesn’t work for you the interview can be found here:

http://www.wpsu.org/radio/archive/takenote
Cross posted at LawandTerrorism.com

View my article, Creating a Domestic Terror Court, forthcoming in the Washburn Law Journal, 2009.

Abstract:

Cross-posted in National Security Advisors

Julian Mortenson wrote an insightful essay for Slate, providing details about the facts and law applicable to the Spanish investigation of Bush administration officials regarding allegations of torture at Guantanamo Bay.

He does a pretty good job of summarizing the state of the law, and the policy issues involved, a few quick hits:

First, “Nobody’s been charged with anything yet. The Spanish civil law system allows criminal complaints to be filed by individual civilians, screened by an investigating magistrate like Garzon, and then referred to a prosecutor’s office for preliminary assessment. After the prosecutors make their recommendation, an ultimate go/no-go decision on pursuing criminal charges follows. In the Guantanamo case, the process has only just cleared the first screening. That said, the referral makes a full investigation quite likely, and at least one official Spanish source has called eventual charges ‘highly probable.’”

Second, even if an arrest warrant were issued, it’s pretty unlikely that the U.S. would extradite Bush administration officials to Spain; although it may very well mean that those individuals may not be able to travel abroad.

Finally, a broader issue, according to Mortenson, is the fact that these individuals are facing criticism, not for their role in individually ordering specific acts of torture, but rather for creating a framework that would facilitate torture.  Mortenson importantly notes that while some of the legal advice may have ended up being wrong “in the eyes of the Supreme Court” it wasn’t insane.

An interesting essay, and well worth the read.

Cross Posted at LawandTerrorism.com

As Amos pointed out below, the January/February issue of the American Bar Association’s National Security Law Report, a publication of the Standing Committee on Law and National Security is now available on-line.

In this issue we feature three contributions which address the important topic of direct action against alleged terrorists and the legal framework which should govern in those circumstances.

First, David Luban (Georgetown University Law Center) and Amos N. Guiora (University of Utah, S.J. Quinney College of Law) debate the legal framework applicable during the recent conflict in Gaza. Professor Luban asks “Was the Gaza Campaign Legal?” while Professor Guiora suggests a new legal framework which he terms “Proportionality ‘Re-Configured’.”

Also, Sarah Miller (Harvard Law School), winner of The ABA Standing Committee on Law and National Security’s 2008 Student Writing Competition, pens an essay entitled “Covert Action and the War on Terror: Reconciling Secrecy and Public Legitimacy” in which she examines the current legal framework governing covert action and makes the case for transparent guidelines.

Check it out here.  If you’re interested in proposing your own article or debate for an upcoming issue, please contact me here.

If you would like to receive: a FREE hardcopy subscription to The National Security Law Report, plus email updates on workshops, seminars, speeches, events, and career postings in national security fill out this form here.

Cross posted at LawandTerrorism.com

I wanted to bring to your attention an exchange  between Prof David Luban (Georgetown University Law Center) and myself regarding “Operation Cast Lead” – Israel’s December 2008-January 2009 campaign in the Gaza Strip.

ABSTRACT
In this exchange published in the American Bar Association’s National Security Law Report, Prof. Luban argues that the Gaza campaign violated both the jus ad bellum and jus in bello proportionality principles and that the Hamas civil administration were not lawful targets under Israel’s own interpretation of the law of armed conflict. Prof. Guiora argues that terrorism changes the landscape of armed conflict and requires a reconfiguration of international law. Under this reconfiguration, an entire terrorist organization may properly be targeted. Prof. Luban’s article is entitled “Was the Gaza Campaign Legal;” Prof. Guiora’s is entitled “Proportionality ‘Re-Configured.’”

This exchange includes essays by Guiora and Luban, followed by Guiora’s response to Luban’s essay, and Luban’s response to Guiora’s.

View the debate here.

I’ve posted a draft version of my article Institutional Legitimacy and Counterterrorism Trials to SSRN and SelectedWorks.  The article is forthcoming in the Richmond Law Review and addresses the relationship between conformity and legitimacy in the institutional design process.  I specifically address how legitimacy is an important factor for counterterrorism trials, the military commissions and national security courts.  The article is aimed at national security law scholars and institutional design theorists.  Here is the abstract:

Much of the current debate in national security law scholarship focuses on institutional design issues related to the balancing of values such as legitimacy, effectiveness, fairness and efficiency.  A part of that debate centers around the legitimacy of tribunals established to try alleged terrorists. Critics of those tribunals assert they are an illegitimate form of justice and require reform or replacement by a new national security court. These scholars are principally engaged in a debate over institutional design. This article seeks to contribute to that debate, and also to the larger institutional design literature by providing a theoretical framework for understanding and evaluating legitimacy considerations in the institutional design process. While adding legitimacy as an analytical component may further complicate an already complex legal and policy debate, I contend Read the rest of this entry »