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

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

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

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

Abstract:

Cross-posted in National Security Advisors

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

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

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.

On March 23, I will participate in a live Web seminar sponsored by the Program on Humanitarian Policy and Conflict Research at Harvard University. The program, “Closing Guantánamo: Legal and Policy Debates,will begin at 9:30 a.m. EST.  It focuses on the likely effects of the closure of the Guantanamo Bay Detention Facilities, including the appropriate legal framework to apply to current detainees and the key lessons to be learned.

For more information on the event, click here:   http://ihlforum.ning.com/events/closing-guantanamo-legal-and

To link to discussion threads on the Humanitarian Law and Policy Forum social networking site, click here:

http://ihlforum.ning.com/forum/categories/closing-guantanamo-legal-and/listForCategory

Registration Required: https://harvardsph.webex.com/harvardsph/onstage/g.php?t=a&d=715675188 

Cross posted in National Security Advisors

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 that the benefits to be derived from maximizing legitimacy are too important to neglect.

The analytical framework outlined in this article provides a conformity based model for evaluating the legitimacy of an institution. This framework is useful for sensitizing institutional designers and legal scholars to notions of legitimacy which are derived from the pressure for conformity placed on institutions by external observers. That conformity pressure can force organizations to comply with formal and informal external mandates, overcome uncertainty by copying existing and legitimate forms, and conform with the prevailing norms in a professionalized field. Institutional designers should factor into their proposed reforms an explicit consideration of the value organizations can derive from legitimacy based conformity.

This article also sensitizes scholars to the fact that while an institution may achieve legitimacy, it may do so by adopting an inefficient form. The discussion thus highlights that an institutional innovation such as a national security court may effectively achieve certain goals associated with counterterrorism, but may nevertheless fail to achieve an optimal level of legitimacy. On balance this may be an acceptable legal and policy outcome, however scholars should explicitly recognize the legitimacy tradeoff which is at play in their proposals.

The article concludes by suggesting that because a national security court will, by its nature depart from the structure and practice of an Article III court, national security court proponents must sensitize themselves to the challenge of balancing conformity based legitimacy with effectiveness and efficiency. Thus, the best approach for the institutional design process may be to narrowly and selectively modify the existing legitimate institutional form present in Article III courts, rather than taking a bottom up approach which creates new institutions from scratch. Because the simultaneous maximization of effectiveness and legitimacy is unlikely, scholars and institutional designers should highlight the tradeoffs in their design proposals and account for what factors they’ve elevated over others, noting whether their design poses the risk of criticism on the grounds of suboptimal legitimacy or suboptimal effectiveness.

Cross Posted at LawandTerrorism.com