Freedom of Speech, Support for Terrorism, and the Challenge of Global Constitutional Law
By Daphne Barak-Erez and David Scharia
In the recent case of Holder v. Humanitarian Law Project, the Supreme Court of the United States ruled that a criminal prohibition on advocacy carried out in coordination with, or at the direction of, a foreign terrorist organization is constitutionally permissible: it is not tantamount to an unconstitutional infringement of freedom of speech. This Article aims to understand both the decision itself and its implications in the context of the global effort to define the limits of speech that aims to support or promote terrorism. More specifically, the Article compares the European approach, which focuses on whether the content of the speech tends to support terrorism, with the US approach, which focuses on criminalizing speakers who have links to terrorist organizations. Both approaches are evaluated against the background of the adoption of Resolution 1624 by the United Nations Security Council in 2005, which called on states to prohibit by law incitement to commit terrorist acts. The Article then follows the implementation of the resolution by comparing the traditional American resistance to direct prohibitions of incitement that fail to meet the standard set by the Brandenburg v. Ohio precedent and European legislation that is open to such limitations subject to balancing tests. It then evaluates the potential advantages and threats each option pose to freedom of speech by examining them from the perspective of the controversy of candor within legal decision-making. Based on this analysis, the Article also articulates the challenge of balancing international norms regarding the limits of freedom of speech with different and even conflicting domestic traditions regarding the scope of protection of freedom of speech.
Investigating Violations of International Law in Armed Conflict
By Michael Schmitt
This article discusses how states attempt to fulfill their obligations under international humanitarian law (IHL) and international human rights law to respond to alleged violations of international law by their militaries during armed conflict. Part I lays out requirements under IHL to investigate and prosecute war crimes, covering the obligations of states under both treaties and customary international law. Part II examines how different courts have addressed requirements to investigate violations of human rights instruments within the context of armed conflicts and the lex specialis of IHL, finding that human rights investigations must be independent, effective, prompt, and impartial. In Part III, the author notes the practice of Canada, Australia, the United Kingdom, and the United States in order to assess how these states have fleshed out the requirements and implemented the provisions of international law noted in the previous Parts. Drawing upon these case studies, the article generates twenty-three conclusions indicating the common characteristics of investigations into alleged violations of international law on the battlefield. Finally, in Part IV the article concludes that standards for investigations must consider IHL as lex specialis and the special circumstances of armed conflict in conducting investigations, and should remain practical given the context for situations in which investigations will take place.
Preventive Detention in American Theory and Practice
By Adam Klein and Benjamin Wittes
In Preventive Detention in American Theory and Practice, Adam Klein and Benjamin Wittes show that contrary to civic mythology, the extra-criminal detention of terrorism suspects is not “an extraordinary aberration from a strong American constitutional norm.” The authors argue that a survey of American wartime, emergency, criminal justice, immigration, and health authorities illustrate that American law has not traditionally eschewed preventative detention “where legislatures and courts deem it necessary to prevent grave public harms”. Therefore, “if counterterrorism detention is necessary and tailored to encompass only the truly dangerous it fits relatively comfortably in conceptual terms alongside the many powers state and federal legislatures have given governments to detain citizens and non-citizens alike”.
For years, many have argued that the United States’ addiction to oil is one of its greatest national security threats. This article explores the national security implications of energy dependence from both an environmental and a foreign threat perspective. It argues that a nuclear renaissance would greatly improve the United States’ national security. Nuclear energy is a viable, logical alternative to oil. Moreover, the drawbacks of nuclear energy are far outweighed by the benefits and will become even less consequential with time. The article concludes by exploring the United States’ energy policy decision-making process and suggesting ways the process could be changed to spur a nuclear renaissance.
Strategic Choices: Four Legal Models for Counterterrorism in Pakistan
By James J. Saulino
This article describes four legal frameworks for the conduct of counterterrorism in Pakistan, and, using recent case studies, evaluates their effectiveness toward meeting long-term U.S. strategic interests. The four models examined are: (1) local prosecution; (2) international extradition; (3) rendition; and (4) direct action. The first section discusses terrorism prosecutions in Pakistan in the context of the 2002 trial of Omar Saeed Sheikh and includes an evaluation of Pakistan’s special Anti-Terrorism Courts. The second examines recent experiences with the extradition of terrorism suspects from Pakistan. The third section looks at rendition and seeks to clarify both what the practice entails as well as its legal basis. The final section discusses direct action in Pakistan, including the use of unmanned aerial vehicles and special forces. The article argues that, given the range of options available, U.S. policy-makers must think strategically about what mix of methods is most sustainable and effective over the long-term. It concludes that a shift toward prosecution of terrorism suspects in Pakistani or American courts is desirable but not presently achievable in all cases.
The CIA and Targeted Killings Beyond Borders
By Philip Alston
This Article focuses on the accountability of the Central Intelligence Agency (CIA) in relation to targeted killings, under both United States law and international law. As the CIA, often in conjunction with Department of Defense (DOD) Special Operations forces, becomes more and more deeply involved in carrying out extraterritorial targeted killings both through kill/capture missions and drone-based missile strikes in a range of countries, the question of its compliance with the relevant legal standards becomes ever more urgent. Assertions by Obama administration officials, as well as by many scholars, that these operations comply with international standards are undermined by the total absence of any forms of credible transparency or verifiable accountability. The CIA’s internal control mechanisms, including its Inspector General, have had no discernible impact; executive control mechanisms have either not been activated at all or have ignored the issue; congressional oversight has given a “free pass” to the CIA in this area; judicial review has been effectively precluded; and external oversight has been reduced to media coverage that is all too often dependent on information leaked by the CIA itself. As a result, there is no meaningful domestic accountability for a burgeoning program of international killing. This in turn means that the United States cannot possibly satisfy its obligations under international law to ensure accountability for its use of lethal force, either under IHRL or IHL. The result is the steady undermining of the international rule of law and the setting of legal precedents which will inevitably come back to haunt the United States before long when invoked by other states with highly problematic agendas.
Mission Possible: How Intelligence Evidence Rules Can Save UN Terrorist Sanctions
By Vanessa Baehr-Jones
In this Article, Vanessa Baehr-Jones addresses the familiar tension between due process and the prosecution of counterterrorism operations, but does so through the less familiar context of UN Security Council Resolution (UNSCR) 1267, which targets terrorist financing. In the wake of the expanded employment of UNSCR 1267 asset freezes, a growing number of appeals have challenged the legality of these sanctions on the basis that they fail to provide judicial review or a right to a hearing. This litigation has resulted in findings from both the European Court of Justice and the UN Human Rights Committee that the imposition of UNSCR 1267-mandated asset freezes without a hearing, proper defense, or judicial review violated the fundamental rights of persons targeted. This Article suggests that the criticisms of these findings are unwarranted, as they ignore the substantive concerns raised by those decisions. Instead, the Article directly examines the due process concerns raised in terrorism designation cases and, ultimately, demonstrates that the fundamental problem preventing adequate due process in 1267 cases is the use of secret intelligence evidence. In light of this conclusion, the author proposes the creation of an international standard for due process involving secret intelligence evidence modeled on the jurisprudence of currently established international criminal courts. These mechanisms for review of secret intelligence evidence, Baehr-Jones posits, will enable the UN to create judicial review at the international level, thus addressing the tension between due process problems of UNSCR 1267 and the need to support international efforts to combat terrorism.
Beyond Guantanamo: Two Constitutional Objections to Nonmilitary Preventive Detention
By Eric Sandberg-Zakian
Eric Sandberg-Zakian addresses nonmilitarypreventive detention, a scheme that has gained support as a sensible alternative to holding suspected terrorists now that indefinite, unreviewable military detention is no longer an option. Such a program would empower the government to detain suspects who are potentially dangerous but cannot be shown to be proper targets of AUMF-authorized military force or proven guilty of criminal acts beyond a reasonable doubt. Sandberg-Zakian identifies two major constitutional challenges—one under the Suspension Clause and the other under the Supreme Court’s decision in Kennedy v. Mendoza-Martinez—that no preventive detention proponent has heretofore addressed, because no preventive detention critic has yet articulated them. This Article concludes that both challenges are likely to be successful, and that any nonmilitary preventive detention scheme is therefore likely to be held unconstitutional.
By David D. Clark and Susan Landau
As a result of increasing Internet insecurity — DDoS attacks, spam, cybercrime, and data theft — there have been calls for an Internet architecture that would link people to packets (the fundamental communications unit used in the Internet). The notion is that this technical “fix” would enable better investigations and thus deterrence of attacks. However, in the context in which the most serious national-security cybersecurity threat the US faces is data exfiltration from corporate and government sites by other jurisdictions, such a solution would be a mistake. Cyberattacks and cyberexploitations are more different than they are the same, and multi-jurisdictional, multi-stage attacks (in which machine A penetrates and “takes over” machine B) are the critical cybersecurity threat. Meanwhile IP addresses are more useful as a basis for various kinds of attribution than has been sometimes thought, and the occasions when attribution at the level of an individual person is useful are very limited. We consider how cyberexploitations and cyberattacks might be traced, and discuss how technical contributions can only be contemplated in the larger regulatory context of various legal jurisdictions.
By Philip B. Heymann
In response to various scholarly commentaries, Professor Philip Heymann argues that applying the law of war outside of the “normal state-against-state context,” in order to justify military detention, involves an “increased risk of mistakes, unfairness, and resentment by our allies,” as “in the context of a traditional war,” the law of war would otherwise provide “protective conditions that are not present when the context changes to international terrorism.” With a proposed modification to the Speedy Trial Act, Professor Heymann argues that shifting to a law enforcement-based approach “comes much closer to honoring both the protection against mistakes and the protection against indefinite, perhaps lifetime, detention” without sacrificing our security.
Vik Kanwar reviews: P.W. Singer, Wired for War: The Robotics Revolution and Conflict in the 21st Century (Penguin Press 2009), Ronald Arkin, Governing Lethal Behavior in Autonomous Robots (Chapman & Hall 2009), William H. Boothby, Weapons and the Law of Armed Conflict (Oxford University Press 2009), and Armin Krishnan, Killer Robots: The Legality and Ethicality of Autonomous Weapons (Ashgate Press 2009).
SYMPOSIUM KEYNOTE ADDRESS
The Developing Legal Framework for Defensive and Offensive Cyber Operations
By Steven G. Bradbury
Steven G. Bradbury provides a legal analysis of U.S. defensive and offensive cyber operations in his keynote address for the 2011 National Security Journal Symposium, “Cybersecurity: Law, Privacy, and Warfare in a Digital World.”