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Abstract:
Although our conclusion may be refined after hearing discussion of this paper at the panel, Bloggership: How Blogs are Transforming Legal Scholarship, our actions as bloggers seem to suggest to ourselves and others that we believe that the benefits of pretenured blogging outweigh the costs in our individual situations. Other would-be bloggers will have to do their own analysis. Unfortunately, this analysis must be done with an unflinching look at one's own ability to self-monitor, self-discipline, and manage one's own time. Also, blogging candidates should determine whether blogging offers benefits that one's own institution cannot offer. Pragmatic professors will also consider whether the choice of blogging form can decrease the risks or increase the benefits. For the majority of pretenured law professors, blogging may be a great way to become a part of the dialogue in your given area. And isn't that why you became a law professor in the first place?

Abstract:
What procedures, if any, should the government be required to implement to minimize the likelihood that non-combatants are not mistakenly deemed to be enemy combatants subject to indefinite detention? The Supreme Court appeared poised to answer that question in the October 2003 term, when it granted certiorari on not one, but three cases resulting from the war on terrorism: Rasul v. Bush, Hamdi v. Rumsfeld, and Rumsfeld v. Padilla. These cases appeared to span the universe of relevant fact-patterns; Rasul and Hamdi involved alien and citizen detainees, respectively, captured on the battlefield, while Padilla involved a citizen arrested within the United States, then detained as an enemy combatant on suspicion of conspiring with Al Qaeda to set off a dirty bomb in an American city. In all three cases, the detainees sought federal court review, via federal habeas corpus, of their continuing detention by our government. Though the some of the detainees disputed the government's substantive power to detain them, they also argued that there were inadequate procedures used to allow them to challenge their classification as enemy combatants.

Yet, for all the fanfare the trio of cases brought on, they leave an important unresolved question: do nonresident aliens detained outside the United States have any due process rights? In holding that the Guantanamo detainees had a statutory right to federal habeas corpus, Rasul provided the detainees with a vehicle for getting to court, but it did not explain what could or could not be put into the vehicle. In this Article, I examine two major due process issues left unresolved by the Hamdi-Rasul-Padilla trio of cases: (1) whether aliens detained outside the United States have cognizable liberty interests sufficient to trigger due process rights; and (2) how should we determine the scope of due process accorded in the event that aliens detained outside the United States are deemed to have cognizable liberty interests?

I argue that the liberty interest in freedom from confinement - essentially, asking to be left alone by our government - is different enough from many of the other lines of extraterritorial cases so as to justify recognizing the existence of such an interest in aliens held outside the country. The war power cases trump this interest and, properly understood, establish a rule denying access to enemy aliens during times of armed conflict. Thus, enemy prisoners of war do have a liberty interest, but they are disabled from proceeding in our courts to press that interest. Because the war on terrorism differs from traditional nation-state armed conflicts in important regards, however, the rule denying enemy aliens access to our courts is not applicable to the current set of detainees.

War on terrorism, due process, detainees, criminal procedure, confinement, Guantanomo, aliens

Abstract:
This Article answers one of the most perplexing questions arising from the war on terrorism, specifically, when should we release detainees kept at Camp Delta (Guantanamo Bay, Cuba)? The usual arguments on this matter verge on one extreme or the other. Some contend that the detainees should either be charged with criminal wrongdoing or released, an unnecessarily restrictive view that also ignores the fact that Congress has authorized the use of military force against the group and individuals responsible for the 9/11 attacks. During a traditional nation-state war, there is no requirement that the detaining State charge enemy prisoners of war with crimes to justify detaining them for the duration of the conflict. On the other hand, the Administration takes the view that the detainees can be held until the end of the war on terrorism a position that is tantamount to holding the detainees for the rest of their lives. What I propose is a non-criminal detention model that draws upon analogies to situations under domestic law in which persons can be detained involuntarily without having been charged with criminal wrongdoing. The ensuing detention model requires that the detainee be within the class of persons against whom Congress has authorized military force (making them the equivalent of enemy soldiers) and also that the government show on a periodic basis that the detainee remains dangerous. The advantage of this model is that it takes into account the invocation of military force but provides a measure of due process to ensure that individual detainees who no longer view themselves at war with us will be released.

Detainees, Guantanamo, War on Terrorism, international law, military tribunals, detention, national security

Abstract:
This article examines the Supreme Court's decision last summer in Rasul v. Bush, which held that the federal habeas corpus statute extended to reach Guantanamo Bay, and concluded that the federal courts had some role in reviewing the procedures used by the United States to classify terrorism detainees as "combatants." I assess the likely impact of this decision upon the federal courts as well as on the recently-announced "Combatant Status Review Hearings." I conclude that the hearings, as currently constituted, might not satisfy due process, but could be easily amended; and I argue that Rasul does not mean that federal courts will be involved in the process of adjudicating the combatant status of the detainees. Finally, while many have criticized the Combatant Status Review Hearings as attempts to evade the Court's ruling, I argue that the hearings are actually an attempt - perhaps flawed - but a reasonable attempt to implement the ruling.

habeas corpus, Guantanamo, terrorism

Abstract:
Death row phenomenon - which refers to the suffering endured by persons who spend years on death row in a state of uncertainty about whether they will be executed - has ceased for now to be a significant source of friction between the abolitionist nations of Western Europe and the United States, given the former's move toward an absolute position against the death penalty, and to extraditing death eligible suspects. But a careful revisit to the doctrine of death row phenomenon suggests that it may not be so easy to confine the doctrine to cases involving the death penalty, as death row phenomenon is as much about the conditions of confinement as it is about the death penalty. Accordingly, I argue that the continuing war on terrorism may increase tension between the United States and Europe, because any Al Qaeda terrorists captured in Europe, if not to be executed in the United States, would almost certainly be detained in maximum security conditions that could give rise to a variant of death row phenomenon.

death row phenomenon, terrorism, death penalty litigation, ethics

Abstract:
In the war on terrorism, the Executive Branch has sometimes opted to use the criminal justice system to prosecute defendants for terrorism-related offenses; and at other times, it has opted to use military force to kill or capture so-called enemy combatants. Arguably, the Executive Branch should be given discretion to choose which approach to use depending on the particular circumstances. Overseas actions might call for military force, while domestic terrorism might call for prosecution (and, upon conviction, punishment).

However, military detention is especially harsh, with conditions of confinement worse than those in maximum security prisons, and much uncertainty abounds as to the procedural rights accorded to military detainees - even ones who are U.S. citizens. As a result, the Executive Branch may be able to extract (and may already have extracted) guilty pleas from terrorism defendants by threatening them with military detention if they do not plead guilty.

In this Article, I argue against unilateral Executive Branch power to transfer criminal defendants into military detention, precisely because of the opportunity, whether intentional or not, for the government to profit from the coercive potential of such transfers. I use blackmail theory to show why such government conduct should be prohibited, and I use the doctrine of vindictive prosecution to show that a constitutional mechanism already exists for courts to protect defendants against coercive actions by prosecutors.

detention, terrorism, coercion, War on Terror, military detention, blackmail, constitutional law, criminal procedure, confinement

Abstract:
This article is part of a symposium, guest edited by Mark Tushnet, reviewing key decisions from the Supreme Court's October 2005 term. The landmark decision in Hamdan v. Rumsfeld has been emphasized as one of statutory interpretation, leaving it up to the President to seek from Congress the authority he deems necessary to fight the global war on terrorism. Yet, Hamdan is not merely a decision of statutory interpretation. It furthers a trend begun in the 2004 trio of terrorism cases: Rasul v. Bush, Rumsfeld v. Padilla, and Hamdi v. Rumsfeld. Those cases were also (primarily) statutory interpretation cases, but with a subtle distinction: the two cases brought by citizens resulted in interpretations of statutes favorable to the government; the one case brought by aliens, like Hamdan, resulted in interpretations of statutes favorable to the individuals. In other words, these cases cannot be explained as instances where the Court has consistently construed ambiguous statutes against the Executive Branch. In this article, I consider why the Court has opted to favor aliens but not citizens. A tempting explanation is that the Court is acting in a "representation-reinforcing role," ensuring that politically powerless aliens detained outside the country are not oppressed by the political branches. However, under that analysis, the Court would be expected to make decisions of constitutional law, not statutory interpretation. Instead, I conclude that the Court's decisions can be understood as taking advantage of congressional inertia. Congress remains free to undo the Supreme Court's statutory interpretations, but it must overcome that inertia to act. In effect, this is a "clear statement of intent to discriminate against aliens" requirement.

war, terrorism, fight, global war, Hamdan, Rumsfeld, Congress, Supreme Court, statutory interpretation

Abstract:
The seemingly parallel cases of John Walker Lindh (informally dubbed the American Taliban) and Yaser Esam Hamdi - both American citizens captured in Afghanistan while supposedly fighting for the Taliban - resulted in vastly different outcomes. Conventional criticism of the government has noted that Lindh was processed through the federal criminal system while Hamdi was detained as an enemy combatant without access to a lawyer, arguing that the disparate treatment cannot be explained rationally. In this contribution to the Crime, War Crimes, and the War on Terrorism Symposium at Lewis & Clark Law School, I argue that the different outcomes in fact make sense. The conventional criticism, which comes from sources ranging from Erwin Chemerinsky to Justice Scalia, focus too much on the formality of Hamdi's American citizenship while failing to acknowledge the reality of his Saudi citizenship. Hamdi's only crime as a foot soldier for the Taliban would be either treason or material support to a designated terrorist organization, but it would be absurd for the United States to demand fealty from a person who grew up elsewhere and never realized he was an American citizen until he was being interrogated at Guantanamo Bay. To argue that Hamdi nevertheless should be subject to criminal prosecution, rather than military detention, for being the equivalent of an enemy soldier would have unexpectedly severe and unreasonable consequences for many American citizens born to immigrant parents. This is true because most countries determine citizenship based on the citizenship of the person's parents. Thus, I was born in the United States to parents who were still citizens of a foreign country, and it is quite possible that I would be deemed a citizen by that country. If the United States went to war with that country and I fought in our armed forces, what would be my proper status if captured by the enemy nation? Under the view espoused by the critics of the government's treatment of Hamdi, I too would have to face criminal charges akin to treason in the foreign country - clearly an absurd outcome when I have grown up only in the United States. If that is true, however, then we have no right to demand that Hamdi not see us as his enemy, merely because of the happenstance of his having been born in the United States.

war on terrorism, enemy combatant, Taliban, Lindh, Hamdi, citizenship

Abstract:
The traditional view of the war powers shared by Congress and the President is that Congress, through the Declare War Clause, has the constitutional power to decide when to commit the nation to armed conflict, while the President has the constitutional power to decide how to wage war once war has been initiated. The Bush Administration, on the other hand, has relied on a claim that the President's position as Commander-in-Chief includes inherent power to use military force as he sees fit, with Congress's check being limited to its power to refuse to fund military expenditures. Critics of the inherent powers thesis have taken issue with the historical and textual arguments advanced on its behalf, but in this short Article, I take a different approach. Assuming for the sake of argument that the inherent powers thesis accurately describes the original understanding of war powers, I nevertheless raise structural objections that demonstrate in certain modern situations, Congress cannot defund the President's military operations, either because (1) the military operation has completed before Congress can act, such as the ill-fated Iran hostage rescue mission; or (2) the executive action has been effectively concealed from Congress, such as the controversial NSA wiretapping program disclosed in late 2005. If Congress cannot defund these operations, then it cannot exert a check on the President's action in those contexts.

war powers, Commander in Chief, inherent powers

Abstract:
While attention has understandably been focused on the coercive tactics used to question detainees held at Guantanamo Bay and elsewhere in secret prisons, much less has been written about the use of positive inducements to bribe detained combatants into cooperating with their captors. For the most part, commentators have suggested that the Geneva Convention raises no obstacles to the use of positive inducements, even against prisoners of war. While I agree that positive inducements are permissible against members of non-state groups such as al Qaeda, I argue that the Geneva Convention should be read as prohibiting the use of such inducements against members of the armed forces of nations, because doing so involves tempting detained POWs into betraying their home nations. The crux of my argument is based on the Geneva Convention's restrictions on compelling or seeking volunteers from POWs to perform labor that materially assists the war effort against their home countries. It seems perverse therefore to allow them to volunteer potentially critical military information. I further distinguish positive inducements to commit espionage in non-armed conflict situations on the ground that the induced betrayal is the same, but the exploitation of detention and captivity is not. The conclusion that the Geneva Convention prohibits the use of positive inducements against POWs, however, does not mean that positive inducements are barred against detainees who are members of non-state groups. Here, I argue that the non-state group's claim of its members' loyalty is not entitled to the same degree of protection as a nation's claim to its citizens' loyalty. While this conclusion may appear circular in privileging nations, it is a structural consequence of the restriction of the right to use military force. Finally, I consider whether positive inducements could be expected to work against suspected al Qaeda members.

Geneva Convention, interrogation, detainee, Guantanamo, terrorism, treason, espionage, inducement

Abstract:
In this Article, which was presented at the Law & Humanities Section Panel at the 2008 Annual AALS Conference, I examine the way that the Fox television series "24" portrays two issues relevant to national security law: the use of torture to extract information in order to stop an imminent terrorist attack, and the depiction of Arabs as villains (and non-villains) with the concomitant impact on racial profiling and other stereotyping of Arab-Americans and Arabs. I conclude that the depiction of torture is narratively stacked in favor of government agent Jack Bauer. I also conclude that "24" attempts to balance its portrayal so that not all villains are Arabs, and not all Arabs are villains. However, I point out points of improvement in this area.

Jack Bauer, 24, television, torture, racial profiling, terrorism

Abstract:
Blogs are like television: potentially a terrific educational tool, but often just pedestrian entertainment. While legal bloggers can hope that their blogs are different, there are only a few notable examples of legal bloggers having leveraged their blogs for professional purposes. And the legal academy is still coming to grips with blogging: is it scholarship, public service, or just a hobby?

Yet legal blogs are having an important impact on the Supreme Court confirmation process. Supreme Court nominations are relatively rare events, even though 2005 saw not one, but three nominees: John Roberts, Harriet Miers, and Samuel Alito. Although the nomination process occurs infrequently, the impact of legal blogging on the Supreme Court confirmation process may shed light on other areas where legal blogging will impact the legal community.

blogs, supreme court confirmation process, legal blogs, supreme court nominations

Abstract:
One reason that the Bush Administration persistently resisted giving Guantanamo Bay detainees access to courts and to lawyers was the belief that they would use such access to engage in "lawfare," or "the use of law as a weapon of warfare." Discovery of a purported al-Qaeda training manual in a safehouse in Great Britain reinforced this concern, particularly given the manual's exhortation to its readers, if captured, to make false claims of torture and to use attorneys to pass information to the outside world. Yet, the Supreme Court's decision in Boumediene v. Bush appears to discount the concern over lawfare by implying that the detainees are constitutionally entitled to representation by counsel. In this Essay prepared for the Allen Chair Symposium on "Detaining Suspected Terrorists: Past, Present, and Future," I discuss reasons to believe that lawfare -- as practiced by lawyers for detainees -- can be adequately controlled by existing tools available to the government: security clearance requirements for counsel, and monitoring of privileged conversations. These tools are not without controversy, and I do not mean to suggest that they should be used lightly, but their very intrusiveness makes them particularly effective at impeding lawfare. Thus, I conclude that it is unpersuasive to argue that Bouemdiene will endanger Americans by enabling detainees to engage in effective lawfare through the use of lawyers.

Guantanamo, detainees, lawfare, security clearance requirement, monitoring priveleged communinations, Boumediene