Volume 4

Issue 1

Notes on a Terrorism Trial – Preventive Prosecution, “Material Support” and The Role of The Judge after United States v. Mehanna
By George D. Brown

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The terrorism trial of Tarek Mehanna, primarily for charges of providing “material support” to terrorism, presented elements of a preventive prosecution as well as the problem of applying Holder v. Humanitarian Law Project (HLP) to terrorism-related speech. This Article examines both aspects of the case, with emphasis on the central role of the trial judge. As criminal activity becomes more amorphous, the jury looks to the judge for guidance. His rulings on potentially prejudicial evidence—which may show just how much of a “terrorist” the defendant is—are the key aspect of this guidance. If the defendant is found guilty, the sentence imposed by the judge can have a profound impact on future preventive prosecutions, particularly the judge’s handling of the Sentencing Guidelines’ “Terrorism Enhancement.”

Terrorism Prosecutions in U.S. Federal Court: Exceptions to Constitutional Evidence Rules and the Development of a Cabined Exception for Coerced Confessions
By Norman Abrams

This Article examines a series of special constitutional evidence rules that can be used in criminal enforcement against terrorists. Some of these rules already expressly apply to terrorism cases, others contain an exigent circumstance element that can and, it is recommended, should be adapted to terrorism contexts. Finally, building on both of these sets of special rules, it is proposed that a similar new exception should be applied to coerced confession rules.

Preventing Terrorist Attacks on Offshore Platforms: Do States Have Sufficient Legal Tools?
By Assaf Harel

This Article examines what authority coastal states have under international law to protect their offshore platforms from the dire consequences of such attacks. It argues that while states have sufficient legal authority to take measures for protecting offshore platforms located in their territorial sea, they lack such authority outside that area. In particular, this Article addresses the authority given to states in the 1982 United Nations Convention on the Law of the Sea (LOSC) to restrict navigation within 500-meter-wide safety zones around offshore platforms located in the exclusive economic zone (EEZ) or on the continental shelf. In this regard, this Article argues that not only are such safety zones insufficient for protecting platforms from deliberate attacks, but they also seem to be insufficient for protecting those platforms from safety hazards.

National Security Interest Convergence
By Sudha Setty

Over a decade after the attacks of September 11, 2001, lawmakers, scholars, activists, and policy makers continue to confront the questions of whether and to what extent robust counterterrorism laws and policies should be reined in to protect against the abuse of civil rights and the marginalization of outsider groups. This Article uses political and critical race theory to identify areas of national security interest convergence in which political will can be marshaled to limit some national security policies.

Issue 2

“Out of the Loop”: Autonomous Weapon Systems and the Law of Armed Conflict
By Michael N. Schmitt & Jeffrey S. Thurnher

This Article is intended to help infuse granularity and precision into the legal debates surrounding autonomous weapon systems and their future uses. It suggests that whereas some conceivable autonomous weapon systems might be prohibited as a matter of law, the use of others will be unlawful only when employed in a manner that runs contrary to the law of armed conflict’s prescriptive norms governing the “conduct of hostilities.” This Article concludes that an outright ban of autonomous weapon systems is insupportable as a matter of law, policy, and operational good sense.

The Chilling Effect of the “Material Support” Law on Humanitarian Aid: Causes, Consequences, and Proposed Reforms
By Sam Adelsberg, Freya Pitts & Sirine Shebaya

Nearly fifteen years after the “material support” statute was first enacted, the Supreme Court in Holder v. Humanitarian Law Project affirmed the constitutionality of this broad grant of authority to the government to prosecute individuals providing material support—including humanitarian aid—to foreign terrorist organizations. This decision has led many charitable organizations to raise concerns about the reach of the statute and the chilling effect it has on their activities in the parts of the world most desperately in need of aid. This Article recommends new substantive prosecutorial guidelines to formalize safe harbors for aid that meets specific criteria based on: (1) the types of aid provided, (2) the recipient organizations, and (3) the presence or absence of a specific intent by the donor. It then offers four procedural approaches to instituting these substantive guidelines that may be used as alternatives or in combination.

The U.N. Security Council’s Duty to Decide
By Anna Spain

When faced with a global crisis within the scope of its mandate, the United Nations Security Council (UNSC or Council) has no obligation to decide whether or not to take action. This Article argues that it should. The UNSC is the only governing body with the legal authority to authorize binding measures necessary to restore peace and security, yet neither the United Nations Charter nor the UNSC’s own rules clarify the extent of its obligations. In contrast to conventional scholarship addressing UNSC reform, this Article focuses on improving the UNSC’s decision-making process through the adoption of new procedural measures.

Valuing Speech and Open Source Intelligence in the Face of Judicial Deference
By Andrew V. Moshirnia

This Article highlights the extraordinary deference shown by the Court in upholding a material support statute criminalizing non-violent speech and examines other governmental actions designed to chill foreign speech. This piece examines the deleterious effects chilling foreign speech will have on domestic security, detailing the importance of open source intelligence. Finally, this Article concludes by investigating the likely effect the Government’s positions will have on Crisis Mapping, an exciting new technology that leverages open source intelligence, social media, and horizontal information sharing, to empower citizens and coordinate humanitarian efforts.