JONATHAN F. MITCHELL, University of Chicago Law Paper Requests - Public Law and Legal Theory, George Mason University - School of Law
Email: jmitchell@law.uchicago.edu

Congress's national-security legislation will often require clear and specific congressional authorization before the executive can undertake certain actions. The War Powers Resolution, for example, prohibits any law from authorizing military hostilities unless it "specifically authorizes" them. And the Foreign Intelligence Surveillance Act of 1978 required laws to amend FISA or repeal its "exclusive means" provision before they could authorize warrantless electronic surveillance. But efforts to legislate clear-statement regimes in national-security law have failed to induce compliance. The Clinton Administration inferred congressional "authorization" for the 1999 Kosovo War from an appropriations statute that failed to specifically authorize the conflict. And the Bush Administration inferred congressional "authorization" for the NSA surveillance program from ambiguous language in the post-September 11th Authorization to Use Military Force. In both situations, executive-branch lawyers employed expansive theories of implied repeal and constitutional avoidance to evade the codified clear-statement requirements, and Congress and the courts acquiesced to the President's actions. Recent proposals to strengthen the clear-statement requirements in Congress's national-security framework legislation are unlikely to be effective without institutional mechanisms, such as points of order, that can deter future legislators from enacting vague or ambiguous legislation from which the executive might claim implicit congressional "authorization," and that can induce Congress to confront Presidents that act without specific congressional authorization. Simply enacting more narrow or explicit clear-statement requirements, or adding funding restrictions to Congress's framework legislation, fails to counter the aggressive interpretive doctrines that executives of both political parties have used to concoct congressional "authorization" from vague or ambiguous statutory language.

BEN SAUL, University of Sydney - Faculty of Law
Email: B.Saul@usyd.edu.au

In the absence of a bill of rights in Australia with which to evaluate and challenge sophisticated rights-based arguments for evaluating anti-terrorism laws, those faced with arguably excessive laws are left with little upon which to hang their challenges. In the High Court case of Thomas vs. Mowbray (2007) 237 ALR 194; 81 ALJR 1414; [2007] HCA 33, a classic double attack on constitutional grounds was mounted against the imposition of a control order on Joseph (Jack) Thomas under Div 104 of the Criminal Code (Cth) first, Chapter III arguments about judicial and non-judicial power, and secondly, arguments about lack of legislative power. This comment briefly sets out the Chapter III arguments before focusing on the legislative power issues (specifically, whether the defence and external affairs powers support control orders), questioning whether the High Court exhibited too much deference towards government concerns about security threats.

BEN SAUL, University of Sydney - Faculty of Law
Email: B.Saul@usyd.edu.au

This paper focuses on the growing pressure to automatically exclude suspected terrorists from refugee status since the late 1990s including exclusion based on mere membership of terrorist organizations. As the first part of this paper shows, such pressure has emanated from the UN General Assembly, the Security Council, regional organizations, States and even the UN High Commissioner for Refugees (UNHCR). Yet, as the remainder of the paper illustrates, terrorism is not listed as a separate ground of exclusion in the 1951 Refugee Convention, and there is no internationally accepted definition of terrorist offences which could serve as a principled basis of exclusion. In the absence of an international definition of terrorism, operative legal reference to terrorism in exclusion decisions endangers refugees and violates international refugee law. This chapter argues foremost that exclusion must be based on an individual assessment of whether a person meets the specific criteria for exclusion in Article 1F of the 1951 Refugee Convention. Further, the existing exclusion grounds - though misapplied by some States in practice - are adequate and appropriate for addressing the serious challenges posed by modern terrorism.