MING M. ZHU, Harvard University - Harvard Law School
Email: zhumming@gmail.com

Truth commissions, usually described as a softer transitional justice alternative to trials, gained traction in academic circles following the establishment of South Africa's Truth and Reconciliation Commission. Though they are praised for their value in societal reconciliation and widely recognized for their flexibility; little is understood of their causal factors or requirements. This Article turns to this hole in the research and examines the effects of one potential causal variable, the balance of power between the warring parties. Through an in-depth examination of four case studies, El Salvador, Guatemala, Peru, and East Timor, this Article finds that truth commissions are more likely to be implemented following conflicts that have ended without a clear and absolute winner. The analysis suggests two things: first, scholars should shift from the ends-based analysis of what works best to the means-based analysis of what will be possible; and second, a quest for truth may first require a need for compromise.

EDGARDO ROTMAN, University of Miami - School of Law
Email: erotman@law.miami.edu

Terrorist violence perpetrated by states, non-state actors, individuals, or private groups ''jolts elementary human consciousness.'' Most shocking is the arbitrary murder of uninvolved parties for the sake of propaganda. In addition, terrorism grievously affects survivors, victims' families, the community in general, and even the terrorists themselves.

Therapeutic jurisprudence attempts to use the law as a therapeutic agent. For this purpose, it has developed a strong interdisciplinary component that has broadened understanding of law's social impact. This understanding is particularly necessary for an adequate legal response to the challenge of terrorism and its devastating psychological effects.

LAWRENCE O. GOSTIN, Georgetown University Law Center - O'Neill Institute for National and Global Health Law, Georgetown University Law Center
Email: gostin@law.georgetown.edu

World-acclaimed authority Lawrence O. Gostin analyzes biosecurity policy since 9/11. He begins with the question: Are we safer now? Then comes a review of biosecurity legislation, followed by discussion of planning to deal with specific diseases and the problems with such an approach, and then an explanation of what the right approach is. He concludes by covering the Model State Emergency Health Powers Act and related civil liberties questions.

VICTOR HANSEN, New England School of Law
Email: vhansen@faculty.nesl.edu

In this paper I discuss the use of the state secrets privilege in the context of civil suits brought against the United States government and private contractors working for the federal government by alleged victims of extraordinary rendition. The paper focuses on how best to achieve meaningful oversight of the executive's actions and allow the courts to fulfill their important role of providing individuals the opportunity to have their rights vindicated and protected, while at the same time securing legitimate state secrets. I hope that this focus on extraordinary rendition cases may also have broader applicability in other areas where the state secrets privilege is frequently asserted.

ROBIN KUNDIS CRAIG, Florida State University - College of Law
Email: rcraig@law.fsu.edu

On October 8, 2008, the U.S. Supreme Court will hear oral argument in Winter v. NRDC, addressing specifically the issues of whether the U.S. Navy is entitled to use abbreviated procedures to comply with the National Environmental Policy Act (NEPA) with regard to and whether a mitigation-imposing injunction is appropriate for its Mid-Frequency Active SONAR (MFAS) training exercises occurring off the coast of southern California over two years. However, the litigation more broadly raises issues regarding how to properly balance the public interest in environmental protection and national security preparation, because the Navy's active SONAR activities - both MFAS and Low-Frequency Active SONAR (LFAS) - have been strongly correlated with harm to marine wildlife, including whales, dolphins, sea turtles, and fish.

Environmental organizations, particularly the Natural Resources Defense Council (NRDC), have been challenging the Navy's use of LFAS and MFAS for over a decade now. Three different federal district courts have concluded that the public interest is best served through narrowly tailored injunctions that allow SONAR training exercises to occur, but with significant mitigation measures in place. The Navy, however, has pursued a number of blanket exemptions from various environmental statutes, including not only NEPA but the Marine Mammal Protection Act, the Coastal Zone Management Act, and the Endangered Species Act.

This article provides a survey of the Navy SONAR litigation (including a chart of all the cases as an Appendix), of the federal environmental statutes that have been invoked in that litigation, and of the various exemptions to those statutes that the Navy has used to avoid having to mitigate its training exercises. It argues that, procedurally, the current use of binary statutory exemptions and the mish-mash environmental exemptions counsel in favor of a new comprehensive statutory approach to national security exemptions that: (1) allows all potentially relevant environmental exemptions to be addressed in one proceeding; (2) avoids binary decisions (completely exempt or completely subject to environmental regulation) in favor of flexible mitigation requirements and adaptive management; and (3) requires discovery of actual and unavoidable conflicts between national security needs and environmental policies, at least during peacetime, before complete exemptions should be allowed.

SUBHAYU BANDYOPADHYAY, Federal Reserve Bank of St. Louis - Research Division
Email: bandyopadhyay@stls.frb.org
TODD M. SANDLER, University of Texas at Dallas, School of Economic, Political and Policy Sciences, Department of Economics & Finance
Email: tsandler@usc.edu

A two-stage game depiction of counterterrorism is presented, where the emphasis is on the interaction between the preemptive and defensive measures taken by two targeted countries facing a common threat. The preemptor is likely to be the high-cost defender with the greater foreign interests. A prime-target country may also assume the preemptor role. The analysis identifies key factors - cost comparisons, foreign interests, and targeting risks - that determine counterterrorism allocations. The study shows that the market failures associated with preemptive and defensive countermeasures may be jointly ameliorated by a disadvantaged defender. Nevertheless, the subgame perfect equilibrium will still be suboptimal owing to a preemption choice that does not fully internalize the externalities.

JON D. MICHAELS, University of California, Los Angeles - School of Law
Email: michaels@law.ucla.edu

Commentators who have examined the Executive's post-September 11 practice of persuading corporations to enter into informal and, at times, unlawful intelligence-gathering partnerships have largely viewed the participating firms as co-conspirators, unwitting pawns, or coerced captives of the Executive-and understandably so. After all, participating corporations have been instrumental in enabling U.S. intelligence officials to conduct domestic surveillance and intelligence activities outside of the congressionally imposed framework of court orders and subpoenas, and also outside of the ambit of inter-branch oversight. Yet despite their track record as enablers, corporations are uniquely positioned to help rein in the currently unregulated practices.

This Article analyzes corporate-government agreements and provides the rationale and blueprint for shifting the principal locus of compliance with existing laws (and oversight obligations) from the intelligence officials to the corporations. The inquiry begins by laying out the Article's fundamental postulates: the intelligence agencies depend on private actors for information gathering; the Executive is institutionally predisposed to seek maximum discretion in conducting intelligence operations, both because of the overwhelming pressure to thwart acts of terrorism and because its officials are relatively immune from serious legal or political sanction for proceeding ultra vires; and, the Executive may choose to conduct intelligence policy through informal collaborations notwithstanding the legal, political, and economic harms these shadowy bargains may generate.

To mitigate these harms and enhance the legitimacy of domestic intelligence-gathering practices, the Article proposes to flip the private-public partnerships on their heads, converting the privatization schemes from the handmaidens of inscrutable intelligence policy into the guarantors of a new counterterrorism regime built on legality, integrity, and accountability. Whereas the Executive has shown itself willing (and able) to disregard legal requirements, the corporations lack the incentive and institutional capacity to act with similar abandon.

Thus, the Article recommends that Congress consider using these unlikely - but more pliable - corporate allies as gatekeepers, strengthening the currently incomplete and oft-bypassed legal framework for intelligence operations by obligating the firms to condition their intelligence-gathering cooperation on the Executive's compliance with legal formalities. Ultimately, the Article seeks not only to provide practical insights into the instant problems with unaccountable intelligence operations, but also to spark normative thinking both about how to manage a counterterrorism policy that is rapidly outgrowing the traditional boundaries of private versus public governance and, more generally, about how to involve private actors (and harness their self-interests) in efforts to boost compliance in other failing or failed public-law-enforcement paradigms.