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Abstract:
The paper argues that targeted killing is a legitimate form of active self-defense in the context of anticipatory self-defense. If the decision to target a particular individual is based on reliable and corroborated intelligence information and on the premise that no alternatives exist (the individual for operational reasons may not be arrested) and the individual to be targeted is a significant terrorist whose death will impact upon the terrorist organization then the decision is legal. In addition, the article calls for a revamping of international law reflecting the reality that traditional warfare between states has been replaced by armed conflict between states and non-state actors, some state supported, others not.

Terrorism, Targeted Killing, Right to Active Self-Defense, Palestinian, Israel

Abstract:
The paper argues that torture is legally and morally wrong and operationally not effective. In analyzing the Bybee memo, the paper argues that the atmosphere created by the Bush Administration contributed to the violations of human rights in Guantanamo Bay, Abu Ghraib, Bagram and other detention centers. Furthermore the article identifies three different forms of torture: 1) interrogation based (what some refer to as the ticking bomb); 2) sadistic or evil (the events in Abu Ghraib, as an example); 3) functional (a new leader demonstrating that there is a new sheriff in town). The paper argues that while harsh interrogation are legal and may be used, torture is both illegal and immoral.

Torture, Bybee Memo, National Security, Civil Rights, Interrogation, Intelligence Information

Abstract:
Unlike traditional war in which soldiers fought soldiers and tanks attacked tanks, the unseen enemy in the dark shadows of the back alleys characterizes the post 9/11 world. Commanders are facing many challenges targeting battlefield combatants. What increasingly complicates the battlefield commanders' dilemma in determining the status of the individual standing before him is what we describe and define in the article as voluntary human shields. Commanders are faced with many decision points once terrorist organizations or enemy forces introduce human shields into the equation. Battlefield commanders must determine whether the human shield is friend, foe, or innocent bystander. After making this determination, the commander then must consider the impact of potential civilian casualties or the perception that civilian casualties occurred. These decisions often have to be made by the commander on the ground with little to no time to contemplate the pros and cons of the decision.

We have chosen to address this issue for multiple reasons: commanders demand clear criteria regarding the status of those in the zone of combat; the innocent civilian must be protected; international law demands the soldier be trained in distinguishing between the innocent and non-innocent and the community supporting terrorist organizations must know that the truly innocent will be protected (to the greatest extent possible). The security of those individuals on the battlefield depends on the analysis of the commander. The commander must assess the security rights of the individuals on the field of battle (guided by international humanitarian law) versus the security of the soldiers he commands and the security of the state he represents. The commander needs tools to toss into his proverbial pack to take with him on the battlefield. In the article, we assert the tools must consist, at a minimum, of the following factors: 1) intelligence information; 2) analysis of the conduct of the specific individual; 3) battlefield circumstances at the relevant time; 4) the commanders' prior experience; 5) the conduct of additional individuals in the surrounding area. Senior military commanders, policy and decision makers, academics, the general public and those supporting terrorists must address this issue. Otherwise, the killing of innocent civilians is as inevitable as the tragic death of a soldier unequipped to determine who is the enemy.

Voluntary Human Shields, Terrorism, International Law, International Humanitarian Law, Combatants, Commander, Asymmetric Warfare, Military Targets

Abstract:
This paper examines the difference between administrative law measures in counter-terrorism (deportations, house demolitions and administrative detentions) and the criminal law in developing a counter-terrorism strategy. Furthermore, the article analyzes a number of critical issues related to counter-terrorism including indefinite detention, judicial review, self-defense, torture and the status of terrorists.

Counter- terrorism, Morality in armed conflict, Rule of Law, National Security, Civil Rights, Administrative Law, Criminal Law

Abstract:
Traditional state v. state war is largely a relic. How then does a nation-state protect itself - preemptively - against the unseen enemy? Existing international law - the Caroline Doctrine, UN Charter Article 51, Security Council Resolutions 1368 and 1373 - do not provide sufficiently clear guidelines regarding when a state may take preemptive or anticipatory action against a non-state actor. This article proposes rearticulating international law to allow a state to act earlier provided sufficient intelligence is available. After examining international law, this article proposes a process-based "strict-scrutiny" approach to self-defense. Under this approach, the executive will have to convince a court, based on relevant, reliable, viable, and corroborated intelligence, that preemptive action is appropriate. This process leads to a check on the power o the executive by placing a judicial check on preemptive action, consequently establishing objective legal criteria for operational counterterrorism.

Muge Kinacioglu, Department of International Relations, Bilkent, University, Turkey, wrote a response to my article titled, "A Response to Amos Guiora: Reassessing the Parameters of the Use of Force in the Age of Terrorism: Pre-emptive Action and International Law." Tarcisio Gazzini, Faculty of Law, VU University, Amsterdam, also wrote a response titled, "A Response to Amos Guiora's Article on Pre-Emptive Self-Defence Against Non-State Actors."

self-defence, state self-defence, anticipatory self-defence, self-defense, state self-defense, anticipatory self-defense, non-state actor, national security, terrorism, counterterrorism, pre-emptive action, international law, UN Charter, Article 51, Caroline Doctrine

Abstract:
Efforts to stop the spread of international terrorism continue to be lead stories on all major news outlets. However, an important, and often overlooked, aspect of counterterrorism is the unscrupulous use of both domestic and international financial markets. This powerful and dangerous weapon of terrorism is addressed through our article by specifically discussing how both the government and the citizens ought to address the eradication of such unscrupulous use.

In order to effectuate this discussion, we first examine the laws on the books before the 9/11 attacks to determine whether approaching terrorism financing in the same way as traditional money laundering was proper. Then, after determining such a venture to not be adequate, we examine the nature of terrorism financing to determine what efforts need to be taken to make terrorism financing legislation adequate and effective.

Lastly, the article undertakes the task necessary in any counterterrorism discussion, the act of balancing competing interests. Here, the government has an interest in protecting the citizenry. Competing against that interest is the interest of individuals' freedoms. The specific competing interest here is the right to freely exercise religion. Weighing back, then, to the government is the unscrupulous use of financial networks under a false pretense of religious exercise.

Throughout this morass of interests, the concluding recommendations highlight that the answers are neither purely governmental nor individual. Rather, the government and the people must each take up their own responsibilities to effectuate an end to the abuse of financial markets in the name of terrorism financing.

Money Laundering, Terrorism Financing, Hawalas, War on Terrorism, Money Service Businesses, PATRIOT Act, Freedom of Religion, Free Exercise of Religion, Zakat; Informal Value Transfer Systems, Counterterrorism, Counter-terrorism, 9/11, FATF; OFAC; FinCen, Bank Secrecy Act, Israel, Iraq

Abstract:
The article is a survey and analysis of legislation adopted and policy implemented from a historical and current perspective alike examining how the surveyed nations respond to major terror attacks either on their own soil or elsewhere in the world. The article draws on historical sources, scholarly works, Supreme Court cases, national legislation and policy documents.

The United States response to September 11 is examined in the context of a historical survey beginning with the Nixon Administration. I suggest that the killing of the eleven Israeli athletes by the terrorist group, Black September, at the 1972 Munich Olympics marks the beginning terrorism in our age. The response of the Bush Administration to al-Qaeada is analyzed by examining the Patriot Act, the National Security Strategy document and the Presidential Order establishing military commissions.

The Israeli response to terrorism is examined both historically and contemporarily; the events of the past five years are analyzed as are the measures implemented in response. The legality and policy effectiveness of targeted killings are examined and analyzed at length as is the decision to build a security fence between Israel and the West Bank.

Russia's troubled and violent history with Chechnya is examined at length. In addition the stated policy of deterrence and toughness is addressed both from a legal and effectiveness perspective. In addition, relevant legislation is analyzed.

Spain's policy response to the bombing at the Madrid train stations is examined as is relevant Spanish legislation and the powers it grants the executive.

India which faces a wide range of threats must develop policies that on the one hand provides for self-defense yet on the other hand are respectful of larger geo-political considerations. In addition, legislation adopted and subsequently repealed that was intended to give wide powers to the executive are addresses and analyzed.

9/11, Terrorism, National Security, Individual Rights, United States, Israel, Russia, Spain, India

Abstract:
Post 9/11, much disagreement and uncertainty remains about one of the seminal issues in counter-terrorism: where to try terrorists. While much discussed, this issue is not resolved. This article will analyze the issue from a comparative perspective by examining American, Israeli, Russian, Indian and Spanish approaches. Though the five nations' judicial and legal regimes differ, a comparative approach enables policy makers, academics and the public to develop a more global perspective on the issue and possibly to adopt other nations' models.

In the context of articulating the most appropriate forum for trying terrorists, the considerations and ramifications are numerous. The guiding principle must be the obligation of civil, democratic society to respect and uphold the rule of law. The analysis will include a discussion of how each of the nations defines suspected terrorists, before what court of law are terrorists brought, what alternatives are considered and whether fundamental protections are guaranteed.

A critical issue in determining the appropriate forum is the terrorist-defendant's right to confront his accuser. In the American criminal and constitutional law context, the 6th Amendment guarantees a defendant the right to be confronted with the witnesses against him. Should that right be granted to the terrorist-defendant? Bringing terrorists to trial would potentially require the exposing of intelligence sources. This is a major dilemma that will be addressed throughout this article.

Additional issues that must be addressed include: 1) representation - will the defendant be entitled to choose counsel or will counsel be assigned; 2) will the defendant be tried by jury or by a bench trial; 3) will the trial be conducted by an independent judiciary; 4) will the defendant be granted the right to appeal and if yes, 5) to what court.

trying terrorists, right to confront witnesses, right to counsel, US, Israel, Spain, Russia, India, independent judiciary, bench trial, right to appeal, rule of law, comparative judicial regimes, fundamental protections, suspects, 6th Amendment

Abstract:
This exchange on Operation Cast Lead - Israel's December 2008-January 2009 campaign in the Gaza Strip - includes essays by Guiora and Luban, followed by Guiora's response to Luban's essay and Luban's response to Guiora's. Luban argues that the Gaza campaign violated both the jus ad bellum and jus in bello proportionality principles. He also argues that the Hamas civil administration were not lawful targets under Israel's own interpretation of the law of armed conflict. 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.

Israel, self-defense, international law, Hamas, Operation Cast Lead, proportionality, counterterrorism, nation state, terrorism, suicide bombing infrastructure, non-state actor

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.

homeland security, terrorism, comparative counterterrorism, defining terrorism, defining counterterrorism, defining homeland security, PATRIOT ACT, effectiveness, structuring homeland security, national security, balancing, policy, civil rights, international law, human rights

Abstract:
This article develops what I call the "hybrid paradigm," which establishes the legal regime for the trials of those detained post-9/11. Incorporating elements of the American criminal law and procedure paradigm and drawing on the Israeli two-tiered system for the trying of terrorists, this article offers concrete recommendations post-Hamdan.

In response to the Supreme Court decision, Hamdan v Rumsfeld, 126 S.Ct. 2749 (2006), I have developed a model that enables the trying of terrorists while meeting judicial scrutiny by drawing on certain elements of the criminal law process. Furthermore, the article addresses the limits of the applicability of the criminal law process, particularly with respect to the right of detainees to confront their accusers. Detainee trials are largely based on intelligence sources whose identity cannot be disclosed. The lack of disclosure prevents full implementation of the 6th Amendment confrontation clause. My model balances the defendant's basic rights with equally legitimate national security considerations.

criminal law, international law, POW, hybrid paradigm, criminal procedure, rights and status of post-9/11 detainees, Miranda, right to confront witnesses, full and fair trial, prisoner of war, detainee, enemy combatant, Quirin, Hamdan, 6th amendment, Confrontation clause, Israel, Guantanamo Bay

Abstract:
The so called war on terror provides the Bush administration with a unique opportunity to both establish clear guidelines for the interrogation of detainees and to make a forceful statement about American values. How the government chooses to act can promote either an ethical commitment to the norms of civil society, or an attitude analogous to Toby Keith's "American Way," where Keith sings that "you'll be sorry that you messed with the USofA, 'Cuz we'll put a boot in your ass, It's the American Way."

No aspect of the war on terrorism more clearly addresses this balance than coercive interrogation. In its recent decision, Hamdan v. Rumsfeld, the procedures governing the Guantanamo Bay Military Commissions were found inadequate by the United States Supreme Court. Though the Court called on the Administration to create adequate procedures and process, the recently enacted Military Commissions Act and the subsequently issued Department of Defense Manual for the Trial of Detainees suggest that the Administration has not fully internalized Hamdan's significance regarding the coercive interrogation of detainees.

In seeking the articulation of clear interrogation standards, this article turns to the pages of American history for guidance. In drawing a comparison between the current detainees and African Americans in the Deep South, this historical analysis argues that the same constitutionally based prohibition on the coercive interrogation of African Americans can be extended to the detainees in the war on terror, a currently unprotected class.

This historical analogy is accomplished by analyzing a set of cases that I term the Bram-Brown progeny. This watershed progeny of cases show the Supreme Court's willingness to enter the interrogation rooms in the Deep South, mandating the extension of constitutional protections to a then-unprotected class of people.

I conclude this analysis by formulating recommendations based on constitutional, criminal, and international law that I posit will both cure the deficiencies identified by the Court in Hamdan and provide a means for the United States to return to its moral stance in the international community.

criminal law, international law, criminal procedure, detainees, Hamdan, hybrid paradigm, Guantanamo Bay, Military Commissions, interrogation, Bram v U.S., Brown v U.S., 5th amendment, 14th amendment, non-citizens, self-incrimination, due process, torture, interrogation of African Americans

Abstract:
The traditional concept of war between States has been replaced by armed conflict between States and non-State actors, some State supported. The non-State actors are terrorists who do not wear uniforms, have insignias nor carry their weapons openly as the Geneva Convention requires soldiers to do.

In the contemporary battlefield, civilians are omnipresent; they are dressed like the terrorist who in clear violation of international law, uses them as human shields.

The soldier, as required by international law, must distingiush between the combatant and the non-combatant. Furthermore, international law requires the soldier to make every effort to minimize collateral damage. In addition, soldiers must also conduct themselves morally in armed conflict.

In response to these twin obligations - international law and requirements of morality in armed conflict - the Israel Defence Forces developed an eleven point code of conduct based on international law, Israeli law and an IDF code. The code of conduct is taught via an interactive video developed by the IDF School of Military Law. The video includes clips from relevant Hollywood movies, high-tech graphics and scenarios taken from real-live events.

The article examines and analyzes how an army trains and educates its soldiers and junior commanders on issues related to international law and morality.

Morality, Military Education, Responsibility, Commander, Role Model, Military Culture, International Law, Collateral Damage, Combatants

Abstract:
Finding a balance between national security and the rights of individuals is the most significant issue faced by liberal democratic nations in developing their counter-terrorism strategy. Without a balance between these two tensions, democratic societies lose the very ethos for which they fight. As Benjamin Franklin once said, "those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety." Indeed, it is imperative for democracies to avoid infringing on political freedoms and civil liberties. Yet, the ultimate responsibility of government is to protect its citizenry. The struggle to balance competing interests is the fundamental dilemma confronting democracies today. Balancing will be addressed by analyzing how each of the five nations surveyed in this article (US, Israel, Russia, Spain and India) respond to major terror attacks. Balancing legitimate national security needs against the rights of those individuals living in the nation is a true test of a nation's adherence to democratic values. How each of the five surveyed nations balance will be the focus of this article. The discussion focuses on one particular issue in each of the reviewed countries, demonstrating how each of the five societies surveyed in this article balances national security and individual rights. Each issue is used as an example of how that nation balances. Liberal democratic societies that unilaterally decide on "self-imposed restraints," inherently limit their responses to terrorism. Unlike regimes which act with impunity and disregard norms, the surveyed nations understand that there are limits to power.

Balance, National Security, Individual Rights, Civil Liberties, U.S., Israel, Russia, Spain, India, Judicial Review, Armed Conflict, Self- imposed Restraint, POTA, Prevention of Terrorism Act, Incommunicado, House Demolition, Beslan, Chechnya, Immigrants, Profiling, Guilt by Association, Due Process

Abstract:
You can't say that civilization don't advance, for in every war they kill you in a new way. (Will Rogers, New York Times, December 23, 1929)

As the attacks of 9/11 demonstrate, traditional state v. state war is largely a relic. How then does a nation-state defend itself - preemptively - against an unseen enemy? Existing international law - the Caroline Doctrine, UN Charter Article 51, Security Council Resolutions 1368 and 1373 - do not provide sufficiently clear guidelines regarding when a state may take preemptive or anticipatory action against a non-state actor. This article proposes rearticulating the law to allow a state to act earlier provided sufficient intelligence is available. By examining international, criminal and constitutional law, and making an analogy to the Wild West, this article proposes a process-based strict-scrutiny approach to self-defense. Under this approach, the executive will have to convince a FISA court, based on intelligence that meets a relevance and reliability standard according to the American criminal law paradigm, that preemptive action is appropriate. This process leads to a check on the power of the executive by placing a judicial check on preemptive action, consequently establishing objective legal criteria for operational counterterrorism.

self-defense, wild-west, counterterrorism, legalizing counterterrorism, checks and balances, FISA, criminal law, constitutional law, international law, intelligence information, operational counterterrorism, preemptive self-defense, anticipatory self-defense, counterterrorism strategy

Abstract:
A critical component of counterterrorism is the role of a nation's judiciary. The concept of an unfettered executive, unrestrained by courts and legislatures alike is detrimental to liberal democracies attempting to balance national security and individual rights. In examining the role of the judiciary in the U.S. and Israel, it is incumbent to understand that different political regimes have differing systems. Nevertheless, there is a common thread to this article: an examination of the willingness of a judiciary to actively review and, if need be, criticize and intervene in the decisions and actions of the executive during armed conflict. The article analyzes decisions of the two Supreme Courts and writings both of the Chief Justice of the U.S. Supreme Court, the late Chief Justice William Rehnquist, and the President of the Supreme Court of Israel, President Aharon Barak. It is suggested, as a point of reference, that the judicial activism advocated both intellectually and in practice by President Barak represents one end of the judicial review scale and that the position suggested by the late Chief Justice Rehnquist represents if not the extreme other end, then at least an opposite.

Counterterrorism, Judiciary, National Security, Individual Rights, Civil Liberties, Executive Power, Executive Action, Judicial Review, Judicial Activism, Comparative Law, Rule of Law, Constitutional Law, International Law, President Barak, Chief Justice Rehnquist

Abstract:
Terrorism against the United States, post-9/11, reaches far beyond the U.S. borders. In order to effectively prevent and react to terrorism within the homeland, the U.S. must think of security internationally. International security efforts touch on key issues such as travel security, border control, immigration, intelligence, and financing terrorism. This article examines the U.S. effort at international cooperation in homeland security by examining security and threat assessment in order to analyze current developments and necessary progress moving forward. Further, this article explores comparative efforts at international cooperation in homeland security by examining Canada, Japan, and the E.U. in terms of security and threat assessment. Finally, this article offers recommendations and articulates criteria by which the U.S. can improve vital efforts at international cooperation in homeland security.

To ensure effective counterterrorism, the U.S. must follow a two step process. First, the U.S. must take measures to protect the homeland. Those measure include: promoting travel security by implementing sophisticated technology; promoting border security by securing the Northern border; implementing intelligence sharing between agencies; creating a coordinated plan to promote travel and border security; undergoing training and simulation, and finally; ensuring institutionalized continuity from one Administration to the next.

After taking action to protect the homeland, the U.S. must use these factors as a foundation on which to establish international cooperation. To establish effective international cooperation in homeland security, the U.S. must take measures including the following: forging international partnerships; sharing intelligence related to travel security; creating a coordinated international security plan; running international training and simulation exercises, and finally; implementing international institutionalized continuity.

Abstract:
In the aftermath of 9/11, definitional uncertainty as to the status and rights of detainees has contributed to unending violations of civil and political rights for thousands of individuals held world-wide either directly by, or on behalf of, the United States. While various terms have been used to label detainees including enemy combatant, illegal belligerent, and enemy belligerent, all fail to define the rights such individuals should be granted. Admittedly, this process has been made more difficult by a continued inability - perhaps unwillingness - to define the conflict in a consistent manner. Is this a war? Is this a "war on terror"? Is this police action? Considering this definitional uncertainty, the critical question becomes where to appropriately try these detainees - how to try these individuals while protecting classified intelligence and also maintaining individual rights.

In this essay, I propose that detainees are neither prisoners of war nor criminals in the traditional sense; rather they are a "hybrid" of both. To that end, I recommend that the appropriate term for post 9/11 detainees is "individuals suspected of involvement in terrorism." This definition adopts aspects from both the prisoner of war and criminal law paradigms, thereby creating what I have called a "hybrid paradigm." The hybrid paradigm seeks to balance - or maximize - the legitimate rights of the individual with the equally legitimate national security rights of the state. Furthermore, it seeks to move beyond the amorphousness that has defined much of the debate over the last seven years.

To try these individuals, I suggest a hybrid "domestic terror court" that would allow for an in camera review of confidential intelligence information presented by the prosecutor and a representative of the intelligence services. A properly constituted domestic terror court - comprised of judges schooled in understanding intelligence reports and intelligence gathering procedures, and aware of the necessity of preserving constitutional rights - is the proper starting point in moving forward with post 9/11 terrorist prosecutions. The proposed hybrid paradigm will ensure both the state's obligations to keep intelligence and matters of national security confidential as well as the defendant's right to a fair trial.

Military commissions, national security, national security court, hybrid paradigm, detainees, trying detainees, Boumediene, post 9/11 detainees, rights granted to suspected terrorists, classified intelligence, Article III courts, domestic terror courts, preventive detention

Abstract:
Despite the fact that six years have passed since 9/11, the Pentagon's recent decision to try six Guantanamo detainees for capital crimes such as terrorism and support of terrorism made national headlines. William Glaberson, "U.S. Charges 6 With Key Roles in 9/11 Attacks", N.Y. Times, Feb. 11, 2008, at A1. In this Debate, Professors Amos N. Guiora, of the University of Utah, and John T. Parry, of Lewis & Clark Law School, attempt to settle the question of what sort of forum is most appropriate to try the thousands of individuals in U.S. custody who are suspected of terrorism.

Professor Guiora considers three forum options: treaty-based international terror courts, traditional Article III courts, and a hybrid option he calls domestic terror courts. Ultimately, Professor Guiora argues in favor of domestic terror courts, which he describes as being able to balance the legitimate rights of the individual with the equally legitimate national security rights of the state. He considers this option to be the most practical and expedient policy solution, necessitated by an untenable tension between the understanding that some of the detainees present a genuine threat to American national security, and an awareness that indefinite detention violates constitutional principles and fundamental concepts of morality.

Professor Parry agrees that current U.S. policy toward detainees has been misguided, but does not believe that innovations of the sort proposed by Professor Guiora are necessary. Rather, he suggests that policymakers should choose Article III courts rather than hybrid courts for trials of suspected terrorists, with military courts as a fallback option. Professor Parry points to research that shows that the federal government is often able to prosecute suspected terrorists in federal court, and therefore considers alternative proposals to Article III courts to be solution[s] in search of a problem. Professor Parry realizes that trial in federal court will not be possible for every suspected terrorist, and concludes that, [f]or people who pose a risk but whose conduct may not violate federal criminal law, prolonged preventive detention is the best choice.

where to try terrorists, domestic terror court, Article III court, Military Commission, Military Tribunal, Guantanamo, detainees, individual rights, national security, constitutional rights, preventative detention

Abstract:
In response to the continued terror threat facing the United States, counterterrorism measures must be developed that are both effective and meet accountability standards. This paper approaches the issue by: (1) proposing a matrix facilitating the measurement of the effectiveness or ineffectiveness of a particular counterterrorism measure; and (2) proposing an accountability matrix for measuring the effectiveness of particular measures. The paper's central focus is developing criteria for measuring effective counterterrorism - premised on the rule of law, policy considerations, and the limits of power. If utilized, these criteria will provide empirical evidence that particular counterterrorism measures in actuality contribute to effective and legal counterterrorism.

Counterterrorism, Homeland Security, Effectiveness, Accountability, Government Responses, Legislative Oversight, Checks and Balances, Matrix

Abstract:
President Barack Obama has stated that among his initial priorities as commander-in-chief is closing the United States detention facility in Guantanamo Bay. One of his first actions after taking office was to suspend all legal proceedings in Guantanamo so that the newly inaugurated president and his administration [can] review the military commission's process, generally, and the cases currently pending before military commissions, specifically. To that end, on January 22, 2009, President Obama signed an executive order requiring the closure of the Guantanamo Bay detention facility within one year. This Order raises numerous, highly problematic questions including: What do we do with the current detainees? Where will they go? How will they be tried? Will they be tried? What shall be done with future terrorism suspects?

Although President Obama has made his intentions clear, he has not, as of yet - according to media reports - determined what is the most effective manner to go forth with this enormously complex issue. Therefore, now is clearly the time to develop a working strategy to resolve the fundamental questions of where and how thousands of post-9/11 detainees are tried. For the reasons articulated below, I recommend establishing a domestic terror court (DTC) in the United States.

This article will detail the specific processes and procedures of such a court and seek to answer many of these difficult questions. In doing so, it is my hope that this article will act as a guide for policy makers in articulating, developing, and implementing a process from detention to trial of individuals suspected of involvement in terrorism. A lawful civilian process, subject to independent judicial review, is the constitutional, intellectual, and philosophical underpinning of this proposal. In detailing the nuts and bolts of the proposed DTC. Though I will briefly address why the DTC proposal should be adopted, the primary emphasis in this article is to fill in the blanks as to the workings of the court.

Guantanamo Bay, Domestic Terror Court, detainees, constitutional rights, civilian process and procedure, independent judicial review, executive Order

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.

Religion, Freedom of Speech, Freedom of Religion, Freedom from Religion, Freedom of Conduct, Freedom of Belief, Incitement, Civil Society, Religious Extremism, The Practice of Religion

Abstract:
Israeli public and private sector employers have dealt with security issues longer than employers in most other countries. This Article surveys the Israeli experience, relying on both published and first-hand accounts of Israeli practices, and examines which features can be translated to U.S. employers. In particular, Israeli high-tech firms have largely relied on an informal contact network as a key part of their screening processes for the purpose of hiring employees. This network is in large part based on relationships developed in the course of service in the Israel Defence Forces. In contrast, the security establishment has developed a sophisticated screening process reflective of Israel's security reality. A comprehensive and sophisticated threat assessment is a most important element of this process. In addition, Israeli businesses expend significant resources in plant and facility protection which includes both the actual protection and training of guards. The Israeli model, while obviously expensive, provides several useful, if costly, models for U.S. employers in a more security conscious age.

Employment, Security, Israeli experience, Informal Contact Network, War on Terror, Employee Vetting, Threat Assessment, Plant/ Facility Protection

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.

International law, operational international law, morality in armed conflict, proportionality, collateral damage, innocent civilians, military necessity, alternatives, armed conflict, operational counterterrorism, legitimate targets, combatants

Abstract:
Counterterrorism significantly benefits from a comparativist approach. Precisely because no one country has the monopoly on effective operational measures, nation states significantly benefit from analyzing measures applied by other states confronting similar dilemmas and challenges subject to the role of law. To that end, this article examines the policies of targeted killing and administrative detention as applied in Israel and asks whether and how they are applicable to American counterterrorism. In asking this question, it is important to determine whether the two policies are relevant to the U.S. legal framework. An important consideration is how the differences between Israeli and American societies, geographies, constitutions, and strategies condition the counterterrorism policy of each country. As a result of such differences, what works in one country may not work in another. While I am an unequivocal advocate for comparative research and analysis and have sought to bring this approach to my scholarship, I am fully aware of its limitations. That said, I firmly believe that nation states can and must learn from each other. While judicial, constitutional, and societal paradigms are unique and distinct, like-minded civil, democratic states must undertake the critical effort to understand how similar countries address similar issues.

Counterterrorism, comparative approach, detention, targeted killing, administrative detention, judicial review, intelligence information, international law

Abstract:
Current strategy in Afghanistan starkly illustrates the extraordinary challenges new warfare poses for commanders on the ground. U.S. forces fight the Taliban and al-Qaeda in Afghanistan, but must do so while above all protecting Afghan civilians from both enemy attacks and the effects of U.S. counterinsurgency operations – a difficult and complicated task.

As new warfare became a prevalent – and now predominant – form of conflict, the law did not adapt appropriately to the complicated scenarios new warfare presented. The international community continued to focus on traditional visions of combatants and civilians, notwithstanding the disconnect between that framework and the reality on the ground in new warfare. Most criticisms of the law argued that the law could no longer apply, when, in fact, such critiques simply did not examine how it could apply in a more agile way. Agility means that the law can adapt to changing circumstances and meet the needs of policymakers and commanders on the ground alike; that the law must allow room for new ways of thinking that uphold the law’s goals and principles precisely when they are under fire. To maximize that agility, we operationalize the law with a new framework and guidelines for commanders.

In traditional state vs. state conflict, applying the legal obligations of distinction and proportionality through on-the-ground guidelines was relatively simple; in new warfare, it is immensely complicated. The law of armed conflict does not presently provide commanders with the tools they need to fulfill their mission while simultaneously protecting their soldiers and innocent civilians alike. We re-categorize and re-define persons in the zone of combat to enable commanders to distinguish between innocent civilians and legitimate targets, and separate the latter group into several sub-categories: members of organized armed groups, permanent targets, recurring targets, transitory targets, and legitimate subjects of detention. Using these new categories, we provide commanders with effective tools to distinguish among persons in the zone of combat. Commanders can then determine who (and how) to target, who to detain and who to protect – the only way to meet the twin goals of mission success and protection of innocents.

law of armed conflict, international humanitarian law, Geneva Conventions, innocent civilians, legitimate target, direct participation in hostilities, commanders, asymmetric warfare, distinction, proportionality, Afghanistan

Abstract:
Traditional state v state war is largely a relic. How then does a nation-state defend itself, pre-emptively, against an unseen enemy? Existing international law-the Caroline Doctrine, UN Charter Article 51, Security Council Resolutions 1368 and 1373-does not provide sufficiently clear guidelines regarding when a state may take pre-emptive or anticipatory action against a non-state actor. This article proposes rearticulating international law to allow a state to act earlier provided sufficient intelligence is available. After examining international law, this article proposes a process-based ‘strict scrutiny’ approach to self-defence. Under this approach, the executive will have to convince a court, based on relevant, reliable, viable and corroborated intelligence, that pre-emptive action is appropriate. This process leads to a check on the power of the executive by placing a judicial check on pre-emptive action, consequently establishing objective legal criteria for operational counterterrorism.

Abstract:
This is the transcript of a Mock Congressional Hearing regarding the NSA wiretapping controversy. The panel featured Ruth Wedgewood and David Cole testifying before a Senate Committee. The debate and discussion highlighted concerns touching on privacy, FISA, and the Fourth Amendment.

NSA Surveillance, NSA, wiretapping, terrorism, fourth amendment, 4th amendment, FISA, Foreign Intelligence Surveillance Act, warantless wiretapping