2009
May 11, 2009
American domestic law has long accepted the use of targeted killings as self-defense toward ends of vital national security that do not necessarily fall within the strict terms of armed conflict. However, the legal space for it and the legal rationales on which it has been traditionally justified are in danger of shrinking, writes Kenneth Anderson.
May 10, 2009
Benjamin Wittes and Stuart Taylor examine how to amend American interrogation laws to balance the need to avoid the past administration's excesses against the need to get intelligence from captured terrorists. They review the post-September 11 evolution of Bush administration policies on interrogation, the experiences of the CIA and the military and the lessons to be learned from those experiences.
May 08, 2009
More than seven years after 9/11, the government’s legal, practical and moral authority to detain suspected terrorists without trial remains a subject of fierce debate. Robert Litt and Wells Bennett say Congress could significantly ameliorate the problem by authorizing the creation of a National Security Bar, a permanent corps of security-cleared lawyers who could represent defendants in terrorism-related cases.
March 10, 2009
The federal government relied heavily on immigration laws in its immediate response to the September 11 terrorist attacks, largely because they were available, flexible, and could be directed toward targets deemed immediate and urgent. In a Brookings paper, David Martin suggests how to refine immigration law’s role in counterterrorism, which have clouded a traditional American stance of openness and welcome that has been valuable to diplomacy, business and the successful integration of immigrant populations.
February 09, 2009
For years there has been a debate about whether to create a national security court to supervise the non-criminal military detention of dangerous terrorists. However, the hard question about a national security court is not whether it should exist but rather what its rules should be and, just as important, who should make these rules. As Jack Goldsmith writes, Congress and the President, rather than the courts, must play the predominant role in crafting these rules in order to have a well-designed national security court.
2008
December 19, 2008
The Obama administration will certainly terminate the military commission system, and take steps to reduce reliance on the underlying practice of long-term military detention. In this paper, Robert Chesney explores the capacities and limitations of the federal criminal justice system as it relates to terrorism, and suggests a series of steps Congress could take to make the criminal justice system a more useful tool in counterterrorism cases.
November 17, 2008
America’s civil litigation system begins to break down when a lawsuit requires the disclosure of secret information that could threaten the security of the nation. As a result, Congress should act now to provide federal courts with clear guidance for civil cases in which they must balance the competing demands of open justice and state secrecy, writes Justin Florence and Matthew Gerke.
July 24, 2008
Matthew Waxman examines the questions underlying the discussion of administrative detention, the possible need for new laws in combating terrorism, and how to make and review detention decisions for whom to detain.
2007
November 15, 2007
In December 2005, the New York Times reported, and President Bush confirmed, that the National Security Agency had been conducting electronic surveillance of international communications, to or from the U.S., without obeying the Foreign Intelligence Surveillance Act. The disclosure ignited a wildfire of political and legal controversy, which continues to generate heat today.