In the Journal — February 9, 2017 at 9:38 am

Volume 8, Issue 1

Off-Ramp Opportunities in Material Support Cases

by Kelly A. Berkell

Strategies to counter violent extremism in the United States have centered around preventing violent extremism before it takes hold. The need for intervention, rehabilitation, and reintegration once individuals have already headed down extremist pathways—and intersected with the criminal justice system—receives less consideration, but policymakers and practitioners are increasingly taking note of this void. Factors favoring the development of innovative off-ramp approaches include: the public safety imperative of preventing future violence and recidivism; the increased volume of investigations, rendering prosecution or long-term surveillance in every case impossible or impractical; mitigating circumstances such as the non-violent nature of some material support crimes and the youth of many offenders; and the long-term value of building trust for community partnerships. Program development should be evidence-based, relying upon a comprehensive international analysis, while tailored to incorporate U.S. constitutional requirements and cultural norms including protection of civil rights and civil liberties. This article explores the basis and opportunities for preventing future violence when charging and sentencing defendants who are either suspected or convicted of providing material support for terrorism.

Social Media Compliance Programs and the War Against Terrorism

by Susan Klein and Crystal Flinn

Widespread Internet use by terrorists had made the prevention of terror attacks increasingly difficult. This Article argues that social media companies, like other corporate entities, should be legally required to institute compliance programs that ferret out and report terrorist activity at the earliest possible opportunity. To this end, the Article proposes text for new legislation that would criminalize social media companies’ failure to discover and release terrorism related posts to the government. The authors alternatively suggest borrowing from the white-collar crime arena to secure company assistance in government investigations by granting leniency at sentencing to offending companies. The Article concludes by addressing anticipated constitutional arguments and opposition to the proposed legislative framework.

In Defense of the U.S. Maritime Drug Enforcement Act: A Justification for the Law’s Extraterritorial Reach

by Lieutenant Commander Aaron J. Casavant

Despite the fact that certain drug crimes take place thousands of miles from the United States, aboard foreign vessels, drug traffickers are often successfully prosecuted in U.S. federal courts. This system is firmly grounded in international and domestic law and enables the U.S. government to deliver serious criminal consequences to drug trafficking organizations (DTOs) and individual drug smugglers, often for violating U.S. laws like the Maritime Drug Law Enforcement Act (MDLEA). Some commentators have argued, however, that international law principles of prescriptive jurisdiction and constitutional due process prohibit the criminal prosecution of foreign nationals with little, if any, connection to the United States. These scholars also argue that drug trafficking is not subject to universal jurisdiction because it is not yet recognized as a universal crime. This article argues that there are other, equally valid bases under international law supporting the MDLEA that do not require maritime drug trafficking to be considered a universal crime to enable prosecution in the United States.

Eve of Destruction: Implementing Arms Control Treaty Obligations to Dismantle Weaponry

by David A. Koplow

The corpus of arms control treaties now includes diverse instruments regulating state possession and use of various weapons. One aspect of these treaties that has not received sufficient attention concerns the provisions regulating weapons disposal. These provisions have represented very different legal and political strategies regarding the physical task of weapons elimination. Such provisions generally attempt to reconcile the benefits of certainty (by crafting precise legal obligations that specify dismantling procedures and timetables in detail) versus the benefits of flexibility (by allowing reasonable accommodation for changed circumstances or legitimate difficulties in accomplishing the destruction). In three prominent instances that balancing process has gone badly awry, producing widespread, long-term treaty violations or evasions. This Article provides the first systematic examination of that diverse state practice, scrutinizing the successes and failures, summarizing the lessons learned, and presenting recommendations for future arms control efforts. It thus sheds light on the “back end” of the disarmament process: the mechanisms through which countries go from a high-level agreement about the numbers and types of weapons they will eliminate from their respective arsenals toward the practical phase of accomplishing destruction.

Defense Organization and Civilian Control of the Military (forthcoming)

by Steven Menashi

The trend in defense organization from the National Security Act of 1947 to the Goldwater-Nichols Department of Defense Reorganization Act of 1986 has been toward increased military centralization. This Article argues that centralization misunderstands the organizational dynamics between military and the civilian leadership and does not adequately recognize the importance of ensuring that full information reaches civilian leaders by preserving multiple sources of military advice. The Article posits that certain features of the decentralized model promote civilian control: divisions and overlapping authorities within the military create disagreement, ensuring civilian leaders are presented with multiple sources of information and advice, rather than a single military option.

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