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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts New Directions In Terrorism Policy
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Friday, April 16, 2010
New Directions In Terrorism Policy
Rick Pildes
David Golove
Comments:
This is a most welcome post, especially this recognition:
" ... we need shared legislative and executive responsibility." which brings to mind Justice Jackson's opinion in Youngstown.
Shag, as I'm sure you know, it's the same thesis Jack Goldsmith argued very persuasively in his book!
I'm sympathetic to this post but it goes too far for me. A red flag pops up when I'm told that citizens "might" be treated differently. They ARE to be. This is so even if some courts "might not" do so.
Also, this goes too far: "Rather than tying the hands of the President, Congress can act constructively by adopting rules that effectively remove potential fetters on the effective exercise of executive discretion." Sorry. Under my understanding, "rules" does involve some "tying the hands" sort of things. What is the value of a branch that acts only to "remove" executive limitations. Honestly, that's absurd given what we have seen occur in recent years. I understand the need for some discretion here. But, there is too much of an undertone of "policy flexibility" here. Sometimes, and this includes non-citizens, the legal thing might be the politically (or even internationally) unpopular thing. This is a pragmatic argument with some reasonable logic to it. Pragmatism after all needs to be that to be credible. But, it gives too much discretion to the executive. The cite to a book by a reasonable but still conservative legal mind is telling in this regard.
Though I usually agree with Shag and Joe, I don't in this case. I find this post not just unconvincing, but annoying. Most of it consists of unsupported declarative statements about contested factual issues or legal judgments; ipse dixit.
Let's start with some fundamentals. Take this sentence: Pragmatic as it is, the American constitutional tradition accepts that during wartime government has an extraordinary set of war powers it otherwise lacks. This is false. Just plain false. From Ex Parte Milligan: "[The Founders] foresaw that troubled times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great [emergencies] of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority [i.e., the Civil War].” My emphasis. The Constitutional language itself reinforces this. There's one, and only one, exception when it comes to war time: when, in cases of invasion or rebellion the public safety may require it, habeas corpus may be suspended. We're not facing either situation. The fact that Congress and the President agree to violate such provisions -- assuming they do -- is irrelevant. Let me address this in the context of just one sentence (the post being too long to go through sentence by sentence): the Obama administration has concluded that around 48 people at Guantanamo are too dangerous to release, but cannot properly be tried for various reasons. There's no discussion of WHY those people can't be tried. The inconvenient fact is that, for the most part (maybe for all of them) they can't be tried because evidence was obtained by torture. This means that an entirely new, unconstitutional system is to be established because the Bush Administration committed crimes. Our own misbehavior thus becomes the justification for further misbehavior. This has all the persuasive force of the guy who kills his parents and throws himself on the mercy of the court because he's now an orphan.
Well, as my comments hopefully suggested, I don't disagree with that sort of thing Mark.
I don't find the whole post bollocks though. The mixture of crime/war, the important role of Congress, etc. I noted some "discretion" is warranted. Surely didn't mean of basic constitutional norms. But, various rulings of the Supreme Court repeatedly cited some discretion, such as some lag time in habeas cases. As to war powers, there are some additional powers. Some of the justices at the time of that case, e.g., thought use of paper money or an income tax as a war measure was one. Also, statutorily, war and (to a lesser degree) declarations of force brings with it more governmental power. The power would not be "necessary and proper" in peace time in various cases. I don't think necessarily the article was saying that some constitutional change was wrought. And, expansion of power does not remove basic limitations such as habeas corpus. Korematsu is not right just because price controls and the draft might have been.
Well, as my comments hopefully suggested, I don't disagree with that sort of thing Mark.
I know you don't, and the tone of my comment was certainly not directed at you or Shag.
Hopefully this post will attract more meaningful dialogue on the subject. My comment above was perhaps too cryptic. I provided a 3:59 PM comment on Sandy Levinson's 4/14/10 post that referenced:
" ... Barry Sullivan's 'Justice Jackson's Republic and Ours' included in 'Law and Democracy in the Empire of Force' edited by H. Jefferson Powell and James Boyd White. Sullivan's paper is available via SSRN at: http://ssrn.com/abstract=1587062 It focuses upon Justice Jackson's opinion in Youngstown in contrast to Justice O'Connor's plurality opinion in Hamdi v. Rumsfeld. Here's a tidbit from the penultimate [my favorite word] of Sullivan's 'Conclusion': 'With little or no congressional action, a president may commit the United States to military actions that set a practically irrevocable course and that may eventually exact costs that can be tallied up only in terms of thousands of lives, billions of dollars, and untold damage to the standing of the nation. This can be accomplished in consultation with a narrow group of advisors, and it may be done in a matter of hours, if not minutes. Moreover, even when actions cannot be so swiftly accomplished, the legitimate need for secrecy in matters of foreign and military affairs can easily be exploited to stifle debate on controversial policies until it is too late.'" So let's have debate on the imperial and unitary executive, included that suggested by this post, as absent legislative responsibility the executive may become even more imperial and unitary.
When the FBI arrested the eight German saboteurs in 1942 they expected to charge them in civilian courts. Then the DOJ realized that whatever they did in Germany was protected by combatant immunity, and while they had come to the US with the intent to blow up factories, intent all by itself is not sufficient to make a criminal charge. They had been arrested before they had an opportunity to commit a criminal act. In the end, the only crime they could be charged with in civilian court was that, having enter the US at a location that was not a port of entry (paddled ashore from a U-Boat) they had failed as required by law to proceed to the nearest customs office to make a declaration. In 1942 this was subject to a maximum sentence of 18 months.
However, in military court they were convicted of the offense of "crossing lines without uniform", a capital offense for which they were executed. This offense cannot be charged in an Article III court because it does not exist in the civilian criminal justice system. It is exclusively a military offense defined in the laws of war and limited to use by military courts. An enemy soldier, whether he is a US citizen or an enemy alien, can always be charged in a Court Martial. Under current law, unlawful alien enemy combatants can also be tried before a Military Commission, but lawful enemy combatants or unlawful enemy combatants who are US citizens have to be given a Court Martial just as we provide for our own soldiers charged with comparable offenses. In 1942 the German saboteurs (one of whom, Huber Hans Haupt, was a US citizen) were tried before a Military Commission instead of a Court Martial so the trial could be held in secret so the German army would never learn what had happened to their people and use that information to correct their mistakes. Today Military Commissions have slightly different rules of evidence because enemy aliens are not entitled to every protection written into the Constitution but the rules for Court Martials assume that everyone has, for example, the military version of Miranda rights. It is not against the law for an enemy alien to join an enemy army. They commit no crime by enlisting or serving. Traditionally, enemy soldiers are held as prisoners of war for the duration of hostilities. We should expect that in any conflict there will be enemy soldiers who cannot be tried in any court for the simple reason that they have committed no crime. Thus there are some people who can only be tried in a military court because they have only committed military offenses. There are some people who can only be tried in civilian court because the military has no valid jurisdiction. There are others who have committed both military and civilian offenses and can be tried in either jurisdiction. These distinctions are based on the law and not on anyone's particular preference or some imaginary higher principle. That is why it is silly to legislate as the McCain-Lieberman bill does that someone whose status is determined to be an unprivileged belligerent cannot be charged in civilian court for any civilian crimes. All spies and saboteurs, including the eight Germans in 1942, the two Germans in 1945, and Padilla and al Marri in 2002 and 2003 are unprivileged belligerents by their status as spies, yet they are also subject to the concurrent jurisdiction of the civilian court system for civilian crimes and the military court system for military offenses. Legislating a single solution in advance of knowing either the facts or the available charges (or making ideological pronouncements in some other direction) is not a very smart idea.
Mark, I don't see the contradiction you appear to see between what you quote from the topic post and ex parte Milligan, nor how the former quote is false. The quote from the Court cannot mean what it might most naturally be taken to mean out of context, since the Court goes on to say that martial law can be imposed as necessity dictates, which does amount to suspension of certain provisions of the Constitution. Granted, the Court gives a strong view of what necessity amounts to, but they had the option of ruling that nothing could justify martial law. Further, ex parte Milligan is hardly the sum of American constitutional tradition about this, as Joe points out. I think most would agree with the view that the government has extraordinary powers in wartime, beyond the suspension of habeas corpus.
How have you discovered the reason most of the 48 can't be tried? It may be that the evidence against them for any crime is too weak to meet the standard required for trial. I take it your view is that such people, and those who are held because of evidence obtained improperly, should be released. Does it matter whether these people are citizens, and where they were detained?
Then the DOJ realized that whatever they did in Germany was protected by combatant immunity, and while they had come to the US with the intent to blow up factories, intent all by itself is not sufficient to make a criminal charge.
It seems kind of obvious to me that they could have been convicted of conspiracy to blow up factories, at a minimum, unless you think (1) training in sabotage techniques, (2) smuggling large quantities of explosives into the United States, and (3) identifying specific targets to be blown up are insufficient to satisfy the overt act requirement.
"It seems kind of obvious to me that they could have been convicted of conspiracy to blow up factories"
When a soldier engages in military training and planning, his actions are protected by combatant immunity. He cannot be charged with civilian crimes or tried in civilian courts for the things he does as a soldier. When a soldier dresses in civilian clothes and pretends to be a civilian and crosses through your lines of defense on a mission to blow something up, he becomes a spy and saboteur. From the moment he crosses through your lines, he loses his combatant immunity for whatever he does going forward, but does not lose it for the things he already did. So from the point of view of the civilian criminal justice system he only has intent to commit a crime unless he commits a criminal act after crossing through lines and entering the US. All the overt acts cited above occurred before the Germans changed into civilian clothes. In 1942 the Justice Department determined that the Germans had committed no criminal act in the 7 days they had been in the country before the FBI arrested them. In terms of modern terrorism there is an alternative calculus. A spy and saboteur can be charged in military court, and here there is no issue of combatant immunity. There is a different problem. An enemy soldier in military court can only be charged with crimes recognized in international law, not crimes defined only in US domestic law. International law allows no concept of "conspiracy". It is not a war crime to train to commit a war crime, to plan to commit a war crime, or even to attempt to commit a war crime. You have to actually commit the war crime. If you are caught first, then you are just a regular POW. In previous wars it did not matter because crossing through lines of defense dressed in civilian clothes is itself a capital offense and in previous wars we have been ready to make the charge. Of course, after a successful terrorist attack a captured enemy saboteur can be tried in either civilian court as a murderer or in military court as a war criminal. And a closing word about what I now realize is the McCain Lieberman Domestic Terrorist Protection Act. If a non-citizen in the US decides to commit a terrorist act of mass murder, and then escapes overseas to some place like Afghanistan where he joins the Taliban, fights against US soldiers and is captured, then then Section 4(a) prevents his prosecution by the DOJ for the crimes he committed. Anyone determined to be an alien unprivileged belligerent cannot be prosecuted by the DOJ in any Federal Court for any crime, and the act does not exclude outstanding felonies committed long before he became an enemy soldier. Since the crime was committed when the terrorist was in the US as a civilian, ex parte Milligan precludes a military trial. This bill now also precludes a civilian trial. So the terrorist gets away with murder, although he can be detained as a prisoner of war.
I also resist the thrust of this of this Post's argument: that somehow the President and Congress should jointly (and exclusively?) drive counterterrorism policy based on some to-be-defined mix of war and crime enforcement paradigms.
It's easy to cast each side as extreme to conclude that the answer should be somewhere in the middle. My own two cents is that when folks do this, we should look extra hard at the evidence they marshal in support of their conclusions. In this case, the argument essentially turns on an emerging "political consensus" in support of the hybrid approach: Congress and the President have made a renewed attempt at military commissions so this must be the way to go. And better rush to set up an indefinite detention regime too before the courts corner the issue. Yet its interesting to me how divorced the Post is from considerations about 1) the efficacy of competing counterterrorism policy models and 2) the risks of relying on the political process to safeguard human rights and the rule of law. On the efficacy issue, the Post makes no mention of the relative merits of civilian trials over military commissions in dispensing justice and incapacitating suspected terrorists. Nor does the Post discuss the potential ramifications that indefinite detention of suspected terrorists might have on the capacity to employ the broader gamut of counterterrorism strategies effectively. (Suffice it to say that I'm skeptical of the value of the law of war paradigm on either of these issues.) With respect to human rights, neither the Congress nor the President has shown that it has the institutional capacity to place a serious premium on maintaining basic commitments to justice and the rule of law. The courts have been the only safeguard, and thank God they're playing a role. And just one final closing comment. I find it disturbing that the Post overlooks the possibility that U.S. attempts to broaden war powers will be used in the future by States that may be much less interested in a narrow battle against dangerous extremists. The longview here is incredibly important, and its too often ignored.
Joe- I think that the post refers to the McCain-Lieberman bill as tying the President's hands by prohibiting civilian trials. Is that the kind of hand-tying you support?
Overall, the approach advocated in the post strikes me as balanced and reasonable.
Since Howard mentioned the absence of conspiracy as a crime in international law, I thought I'd provide a link to my student note on the issue:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1584683 It discusses the conspiracy provision in the MCA of 2009, and considers whether it can be supported under IHL.
From the moment he crosses through your lines, he loses his combatant immunity for whatever he does going forward, but does not lose it for the things he already did.
So wait, bringing a bunch of munitions into the US and hiding them, with the intent to use them to blow up buildings, isn't enough for conspiracy? I'd appreciate a cite for some of these source materials from 1942 you keep referring to.
Raha, are you unhappy with the post because you think the crime model is sufficient? So, for example, the military shouldn't be involved in seeking, detaining and interrogating terrorists? If that's not your view, and you appear not to favor a war model, it's hard to see an objection to the general conclusion that some mixed model will be necessary, or at least advantageous.
The post is clear that the courts have role to play, so I don't see your objection on that ground. It seems to me the authors do refer to concerns of human rights and practical advantages of each model; nothing in the post excludes such considerations, at the least. What is it you would prefer to what the post actually argues for? Leaving it all to the courts?
"So wait, bringing a bunch of munitions into the US and hiding them, with the intent to use them to blow up buildings, isn't enough for conspiracy?"
They paddled ashore in rubber boats wearing their German army uniforms. At that point they were a small invasion party. Since they did not put on civilian clothes and move around as civilians until after they buried the explosives, Justice decided the transport of explosives was covered by combatant immunity. If they had transported the explosives farther than the beach you would have your conspiracy.
"I think that the post refers to the McCain-Lieberman bill as tying the President's hands by prohibiting civilian trials. Is that the kind of hand-tying you support?"
I don't think that is a serious question. Does anyone else? "The courts have been the only safeguard, and thank God they're playing a role." Let me first say that I'm very wary of the "war" model in this context. But, in various cases, armed conflict will occur. The fighting in Afghanistan after 9/11, e.g., was not a "war" (no declaration of war) but it was not a "criminal action." But, I don't agree that the courts alone can safeguard human rights. Their efforts thus far are appreciated, but the continual confinement and mistreatment of them over the years underlines the point. They can do only so much. The Supreme Court invited this action as Justice Breyer noted in Hamdan v. Rumsfeld. Realistically, much of the immediate power and discretion will rest in the hands of the executive and Congress. If they failed their job, it is to our detriment, because the courts can do only do much. Hamilton was right on that end.
Sanpete,
As a general proposition, I do believe the law enforcement model is sufficient for dealing with the many problems posed by terrorism. As support for this proposition, I would cite studies like Human Rights First's In Pursuit of Justice, which takes an in-depth look at hundreds of terrorism cases prosecuted in Article III courts. The study discusses how these courts effectively disposed of many relevant legal issues including the failure to issue Miranda warnings to suspected terrorists, the risk of disclosing sensitive national security information, and the ability of prosecutors to admit evidence to support their cases. By contrast, military commissions face serious legal challenges to their subject-matter and personal jurisdiction and are generally seen as a form of second-tier justice, which - in the opinion of those more informed that me - tends to serve as a recruiting tool for al Qaeda. The same can be said for indefinite detention and targeted killings, although evidence of their deleterious effects on the Obama Administration's ability to successfully combat terrorism is admittedly anecdotal. However, studies have shown that a strategy of "leadership decapitation" is unlikely to be successful in taking down a religiously motivated organization like al Qaeda. See, for example, this interesting study that surveyed the efficacy of such an approach in the counterterrorism context: http://cpost.uchicago.edu/pdf/Jordan.pdf Much more could be said on the merits, but I think my problem with the Post was more fundamental than its failure to seriously address the relative merits of a law enforcement paradigm over a war paradigm. The fundamental problem with conceding the applicability of the war paradigm is its potential to erode respect for human rights and the rule of law. Thus unless the war paradigm has stringent and well-accepted limits, the potential for abuse is quite scary indeed. And, as we have seen, defining the limits of the war paradigm has been quite difficult for Republican and Democratic politicians alike. The latest example is the Obama Administration's willingness to conclude that it has the power, purportedly under the law of war, to assassinate U.S. citizens wherever they may be. I think this example alone is sufficient to place a very heavy burden on those who support the war paradigm to justify why precisely war powers are necessary. Now, to consider your question: whether the military ought to be involved in seeking, detaining, and interrogating suspected terrorists. As with most difficult questions, the answer depends on the circumstances but in this case it should be presumptively "no" for all the aforementioned reasons. However, I'm willing to consider circumstances that might be appropriate for a military response. One such circumstance would be if a particular nation-state was harboring or otherwise substantially supporting al Qaeda leadership within its borders and repeatedly refusing to cooperate with U.S. efforts to seek a law enforcement response. However, this does not seem to be the case before us. And because it does not, I was disappointed that the Post did not seriously address the dangerous erosion that extending the war paradigm into the counterterrorism context could continue to have on basic protections such as the civilian-combatant distinction in IHL and the applicability of human rights law. To be fair, the Post at least hinted at some of these considerations, as you noted. But as with much the political discourse on these issues, I couldn't help but feel that these important considerations were being put on the back-burner. Thanks for taking the time to respond to my comment. I hope I've addressed the thrust of your response.
Joe,
I agree that courts are a necessary, but not sufficient, actor in safeguarding human rights and the rule of law in this context. My only point was that I don't trust the Legislative or Executive branches to do their jobs in this department. Thus I was making the case for a more robust judicial response to counter the Post's suggestion that Congress and the President should take over the business of regulating the indefinite detention of suspected terrorists. I mean, if courts are tasked with anything at all, it most definitely is ensuring that individuals are not unlawfully detained.
Raha, thanks for explaining your position. It's true that anything attached to the war model, as war itself, involves higher risk of violating or minimizing rights, so as much as practical, the criminal model would be preferable. That rule will still require provisions for military involvement in some circumstances, and abridged rights in some cases.
It happens that Jenna Jordan's article was referred to in a post a few days ago. I don't think she makes her case. My comments are here. The American citizen who has been cleared for assassination is in Yemen, where we cannot rely on civil means to secure his arrest, which would no doubt be the best option. By himself, I don't think war powers would be at issue, but he is viewed as part of a larger war. Initially Al Qaeda was being hosted by the Taliban, who did refuse to cooperate with the US in arresting them, so the war model was a fairly uncontroversial call at that point. Even now, Al Qaeda's leadership is believed to be largely located in areas where no civil authority can be used to root them out, even though the governments might cooperate if they had control of those areas.
Sanpete,
You present a forceful counter to Jordan's findings. I'll have to consider your objections more thoroughly when I have some time. However, even assuming that your objections carry the day, I don't think it follows that we ought to nonetheless employ the war paradigm. For one, folks like Admiral Mike Mullen and Matthew Alexander still provide powerful, if anecdotal, evidence that abuses of the war paradigm promote al Qaeda recruitment. And even if al Qaeda recruitment does not depend in part on whether the United States undertakes the war paradigm, you seem to acknowledge that doing so still has costs associated with the erosion of IHL and human rights norms. Given this fact, I maintain that the burden is still on the proponents of the war paradigm to show the significant value-added aspects of military commissions trials, indefinite detention, targeted killings, etc. And, again, these measures need to provide, as a threshold matter, counterterrorism security gains above and beyond what the law enforcement models does with its hundreds of criminal criminal convictions (at a roughly 91% conviction rate). On targeting U.S. citizens, I take your point that the particular target is believed to be in Yemen, but I'm not sure that the legal authority for the targeted killing is similarly confined. I'm assuming that the relevant legal authority here is essentially what Harold Koh outlined at ASIL a couple of weeks back, and I was under the impression that the targeting authority was based on the law of war and had no geographic or temporal restrictions. I could be wrong on this, but if I'm right I think we have a lot more to worry about than a particular decision to target one suspected American terrorist that is roaming free in Yemen. I also take your point about al Qaeda's tendencies to hang out in weak States generally, and in geographic regions that remain unregulated by central governments. This is a big problem, but I'm not sure it necessarily calls for a response from the U.S. military. One reason for being cautious is that many of these areas - whether in Pakistan or Yemen or elsewhere - are also heavily populated by civilians, even if the central government is not on the scene. Another reason is that the mere presence of al Qaeda affiliates may not be a sufficient threat to justify military action and the associated costs. However, if the threat is significant and imminent enough, I think military action could be appropriate under an Article 51 self-defense theory, which seems like a reasonable enough way to look at this problem in my view. Thanks again for your thoughts.
Raha, I agree the burden is on those who favor the use of the war paradigm to justify its use. The criminal model is preferable wherever it's practical. I'm all for civilian trials for the detainees wherever possible, including for KSM (whose trial really should be in New York).
On the targeted US civilian, Koh didn't address the issue of citizenship at all, or of al-Awlaki directly, but this part of his remarks surely applies: "Of course, whether a particular individual will be targeted in a particular location will depend upon considerations specific to each case, including those related to the imminence of the threat, the sovereignty of the other states involved, and the willingness and ability of those states to suppress the threat the target poses." I'm sure if al-Awlaki were in Paris, there would be no clearance for him to be killed. He would be arrested. Similarly, after Holder's ill-chosen remarks about Bin Laden not being taken alive it was clarified that it's preferable to arrest terrorists where possible, including Bin Laden.
Sanpete- are you really sure that if Awlawki were in Paris there would be no clearance for him to be killed? Remember that Awlaki has not been charged with a crime so it is not clear whether there would be any basis for arresting or extraditing him.
MLS, that's a good point. It sounds like the government has grounds for charging al-Awlaki with giving material aid to a terrorist group, or conspiracy, or something that a cooperative government would accept. If not, the grounds for targeting him are probably too weak.
The Yemeni fellow currently in GTMO who worked as a cook for a Taliban regiment because it paid better than work he could get in Yemen lost his habeas case, and his appeal. Peeling potatoes is no crime, and if it was, his 8 years in prison would surely be adequate.
Aside from a very few actual AQ guys in custody, this is what we're talking about when we're talking about detention regimes. The idea that we need to create a new court system to protect us from kitchen assistants etc should carry a very heavy burden, and one that can only be met based on actual facts, not myth.
No war against AQAP can be "won" without active cooperation from the government of Yemen. This is difficult, because we don't want to get sucked into a situation where the government of Yemen is using us against its enemies where those enemies are not also the enemies of the United States. (And Yemen's government has many enemies). Still, you have to ask yourself whether assassinating this man -- who is only regarded as a significant figure in AQAP in Washington, not Sana -- would advance the cause of cooperation or not.
In this case, I think it's really beyond clear that only a criminal model can work. I've never heard any plausible explanation for how the death of this man, in war, works a advancement of US interests over indicting him, and trying to get him back while extending all the protections and benefits of criminal procedure. In the end maybe it has to be a mix: indictment by civil authorities, and kidnapping by the military.
If al-Awlaki would be a valuable enough intelligence resource they might risk the lives of a team to kidnap him, but otherwise probably not.
Oh, and medics. We need a new court system so we can give medics a life sentence.
https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2009cv2368-16
Very awesome post , i am really impressed with it a lot
فوائد الزنجبيل فوائد الرمان فوائد الحلبة فوائد البصل فوائد الزعتر فوائد زيت السمسم علاج البواسير فوائد اليانسون فوائد الكركم قصص جحا صور يوم الجمعه علامات الحمل تعريف الحب حياة البرزخ فوائد الزبيب
I am not the same, having seen the moon shine on the other side of the world.
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Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |