Copyright (c) 2009 All rights reserved. http://works.bepress.com/gregorymcneal Recent documents in Gregory S. McNeal en-us Tue, 09 Jun 2009 08:18:03 PDT 3600 http://works.bepress.com/gregorymcneal/18 http://works.bepress.com/gregorymcneal/18 Wed, 04 Feb 2009 14:15:46 PST Much of the current debate in national security law scholarship focuses on institutional design issues related to the balancing of values such as legitimacy, effectiveness, fairness and efficiency. A part of that debate centers around the legitimacy of tribunals established to try alleged terrorists. Critics of those tribunals assert they are an illegitimate form of justice and require reform or replacement by a new national security court. These scholars are principally engaged in a debate over institutional design. This article seeks to contribute to that debate, and also to the larger institutional design literature by providing a theoretical framework for understanding and evaluating legitimacy considerations in the institutional design process. While adding legitimacy as an analytical component may further complicate an already complex legal and policy debate, I contend that the benefits to be derived from maximizing legitimacy are too important to neglect. The analytical framework outlined in this article provides a conformity based model for evaluating the legitimacy of an institution. This framework is useful for sensitizing institutional designers and legal scholars to notions of legitimacy which are derived from the pressure for conformity placed on institutions by external observers. That conformity pressure can force organizations to comply with formal and informal external mandates, overcome uncertainty by copying existing and legitimate forms, and conform with the prevailing norms in a professionalized field. Institutional designers should factor into their proposed reforms an explicit consideration of the value organizations can derive from legitimacy based conformity.This article also sensitizes scholars to the fact that while an institution may achieve legitimacy, it may do so by adopting an inefficient form. The discussion thus highlights that an institutional innovation such as a national security court may effectively achieve certain goals associated with counterterrorism, but may nevertheless fail to achieve an optimal level of legitimacy. On balance this may be an acceptable legal and policy outcome, however scholars should explicitly recognize the legitimacy tradeoff which is at play in their proposals. The article concludes by suggesting that because a national security court will, by its nature depart from the structure and practice of an Article III court, national security court proponents must sensitize themselves to the challenge of balancing conformity based legitimacy with effectiveness and efficiency. Thus, the best approach for the institutional design process may be to narrowly and selectively modify the existing legitimate institutional form present in Article III courts, rather than taking a bottom up approach which creates new institutions from scratch. Because the simultaneous maximization of effectiveness and legitimacy is unlikely, scholars and institutional designers should highlight the tradeoffs in their design proposals and account for what factors they've elevated over others, noting whether their design poses the risk of criticism on the grounds of suboptimal legitimacy or suboptimal effectiveness. Gregory S. McNeal http://works.bepress.com/gregorymcneal/17 http://works.bepress.com/gregorymcneal/17 Fri, 08 Aug 2008 19:35:35 PDT This document presents an abbreviated legislative history regarding the development of Section 949(b) of the Military Commissions Act of 2006. This legislative history supplements information and arguments made in Gregory S. McNeal, Beyond Guantanamo, Obstacles and Options, 103 NW. U. L. REV ___ (2008). Gregory S. McNeal Research Document http://works.bepress.com/gregorymcneal/16 http://works.bepress.com/gregorymcneal/16 Mon, 14 Jul 2008 16:28:43 PDT The essay focuses on the structure of the military commission system, to date left largely unaltered by Boumediene, but which Congressional reformers will need to modify in order to ensure fair trials. In Part 1, I identify three specific structural reforms necessary to improve military commissions. In Part 2, I focus on obstacles created by the current commissions system which will affect the ability of Congressional reformers to abolish military commissions or transition to national security courts. Gregory S. McNeal http://works.bepress.com/gregorymcneal/15 http://works.bepress.com/gregorymcneal/15 Mon, 19 May 2008 09:25:14 PDT Terrorists are engaged in an online jihad, characterized by the use of the internet to fundraise, distribute messages and directives, recruit and proselytize. It is impossible to shut down the entire presence of terrorists on the internet; however, this article details a proposal which can have a marked impact on the presence of terrorists on the internet. Using existing statutes, it is possible to regionalize terrorist websites, limiting them to an extremely small number of countries from which they may receive internet services. Once the terrorist message is limited to a particular region, a modification of current laws can allow for a cyber embargo on jihadist websites and their supporters. These efforts coupled with diplomatic cooperation can further the effort to curb the impact of jihadist websites, while simultaneously increasing the ability of governments to monitor these websites and, when necessary, shut them down. In this article I outline my proposal using as an example the active and official website of Palestinian Islamic Jihad, a designated terrorist organization. In Part 1 I provide a brief overview of the status of Palestinian Islamic Jihad, and its brazen efforts to stay online despite government efforts. I outline a three step process by which the PIJ web presence and others like it can be eliminated. In Part 2, I detail the threat posed by the cyber jihad. I explain how terrorists use the internet to recruit, train for attacks and coordinate those attacks. I describe the clear advantages terrorist organizations enjoy by using websites and explain the current state of affairs. This sets the stage for a discussion of the current statutory framework which has to date only enjoyed moderate success. In Part 3, I move beyond the threat and detail the legal and policy implications of using existing statutes to eliminate the web presence of terrorist organizations. I also detail the limitations of the current statute and prepare the reader for a discussion of how, with slight modifications, the existing statutory and policy framework can markedly diminish the advantages terrorist organizations enjoy through their web presence. In Part 4, I detail the critical next step in countering the cyber jihad. I explain the advantages of creating a cyber embargo of companies who provide material support to terrorist organizations, but who for legal or policy reasons may be beyond the reach of the material support statute. The creation of a cyber-embargo rests upon a non-criminal material supporter designation which will prevent U.S. companies from conducting business with designated material supporters. In essence, this process involves the creation of virtual persona non grata. I also detail the diplomatic efforts necessary to globalize the reach of this counter terrorism strategy. Through cooperation with foreign governments, loopholes in the jihadist web presence can be closed and terrorist organizations can be forced to a limited number of potential host countries.I conclude the article by discussing the implications of following my approach, and the new counterterrorism opportunities such tactics present. Gregory S. McNeal http://works.bepress.com/gregorymcneal/13 http://works.bepress.com/gregorymcneal/13 Fri, 18 Apr 2008 15:28:11 PDT Gregory S. McNeal http://works.bepress.com/gregorymcneal/12 http://works.bepress.com/gregorymcneal/12 Fri, 18 Apr 2008 15:00:14 PDT Gregory S. McNeal http://works.bepress.com/gregorymcneal/11 http://works.bepress.com/gregorymcneal/11 Fri, 18 Apr 2008 14:51:10 PDT Under the principle of complementarity, the International Criminal Court (ICC) will only exercise jurisdiction when a state is "unwilling or unable genuinely to carry out the investigation or prosecution" of alleged criminals. Unfortunately, "unable" is largely undefined. Article 17(3) of the ICC statute provides a skeletal definition, stating "[t]o determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings." This definition raises as many questions as it answers. The Dujail case of the Iraqi High Tribunal (IHT) presents an interesting test case for analyzing the principle of complementarity. The IHT will likely serve as the model for future internationalized domestic tribunals and is therefore an important experiment in international criminal law. Thus, assuming arguendo that Iraq was a signatory to the ICC, would the IHT and Iraq's criminal justice system have met the standards precluding the ICC from exercising jurisdiction? Under ICC jurisprudence, what constitutes "unable"? Did the procedural shortcomings and other failures of the Dujail case rise to the requisite level of inability? In Part One, I consider the ICC standard for "unable." I discuss the definition of "unable" as provided by ICC Statute Article 17. I examine the ambiguity of the term, and outline the ICC procedures for determining inability. I detail the due process thesis and textualist approaches to inability determinations, and explain the expanded ability criteria developed by the ICC and the ICC's migration towards the due process thesis. In Part Two, I apply the inability approaches detailed in Part One to the IHT. I begin by addressing the significance of the IHT and the criticisms of the IHT by various non-governmental organizations (NGOs). I then apply each of the inability approaches to the IHT fact pattern and the criticism leveled by the NGOs. I conclude this section by determining whether the IHT could be deemed "unable" under each test. I conclude the article by discussing the implications of these questions for the ICC and for domestically constituted tribunals. I recommend that the ICC determine clear-cut criteria for inability determinations, as this will promote domestic tribunals and placate some ICC critics. Gregory S. McNeal http://works.bepress.com/gregorymcneal/7 http://works.bepress.com/gregorymcneal/7 Sat, 03 Mar 2007 20:26:20 PST The United States government is actively engaged in a search for individuals believed to have killed American citizens and destroyed American property. As most of these individuals live openly in foreign states hostile to the United States, achieving extradition often proves impossible. Despite repeated diplomatic efforts to secure the transfer of these terrorists to America, many continue to operate in foreign states under the protection of the host country's continued denial of the terrorist's presence within their borders. The problem of bringing these individuals to justice is further complicated by the fact that the United States is rarely able to pinpoint their precise location. Terrorists typically reside in host countries where it is nearly impossible to find them amongst the citizens. Thus, the broad question is what tools are available to the U.S. government if it was to actually find a terrorist's location? Considering the inherent difficulty in finding that individual again, and the strong likelihood that leaving the individual to his own devices will yield further attacks on the United States, what ought the U.S. President do to preserve the peace and safety of American citizens? Specifically, are the options of the U.S. military restricted by international law trends? This Article addresses these questions by specifically discussing whether a terror suspect who was forcibly abducted may be prosecuted by the United States despite possible territorial violations under the doctrine of male captus, bene detentus. The Article directly addresses whether territorial sovereignty can trump an effort to capture a terrorist who is planning future attacks. The article concludes that it will benefit the international community to codify exactly what will warrant extraterritorial abductions and specifically how such actions may be used. Given the likelihood that the United States and other countries will increase their use of extraterritorial kidnapping, the international community should act proactively to address the issue. Until the international community does codify the specific circumstances under which extraterritorial kidnapping is permissible, the United States is justified in exercising extraterritorial abductions under universal jurisdiction, passive personality, and finally, efficient breach. Gregory S. McNeal http://works.bepress.com/gregorymcneal/6 http://works.bepress.com/gregorymcneal/6 Fri, 01 Dec 2006 00:23:39 PST Gregory S. McNeal http://works.bepress.com/gregorymcneal/5 http://works.bepress.com/gregorymcneal/5 Fri, 01 Dec 2006 00:21:26 PST Gregory S. McNeal