In this Article, I examine the law and policy of military detention through the lens of After Action Reports produced by U.S. military Judge Advocates and interviews with non-lawyer service members directly involved with captures and detention in Iraq. Drawing heavily on these primary sources, I seek to enrich the context of the U.S. detention policy debate in general, and more specifically to highlight and dispute several assumptions running through that debate as it is currently conducted. The lessons taught by the American experience in Iraq suggest, for example, that detention policy progresses through a cycle in relation to sustained overseas combat deployments: It begins with a relatively discretionary approach premised on traditional law of war authorities and administered directly by the United Sates, but over time both legal and strategic considerations combine to shift the focus to host state criminal prosecution and host state administration of erstwhile detention facilities. As a consequence, one should not assume that detention regimes and facilities that may exist at one point in time in an overseas combat setting will continue to be available over the long term. The evolution of U.S. military practice and policy over the past seven years in Iraq also calls into question the common assumption that evidence-gathering and other activities associated with criminal prosecution are entirely alien to and incompatible with military training, doctrine, practice and culture, as well as the related assumption that the realms of criminal law enforcement and military detention without criminal charge cannot coexist. These lessons have direct implications for the future course of U.S. detention policy and practice in Afghanistan, and more generally help to reduce the artificiality of the larger detention policy debate.

This symposium article examines two critiques associated with post-9/11 criminal prosecutions in terrorism-related cases. The data-reliability critique attacks the reliability of the statistics reported by the Justice Department in connection with such cases, while the soft-sentence critique suggests that claims of success in such cases might be overstated in light of the relatively short sentences they produce.

I conclude that the data-reliability critique largely reflects disagreement regarding the types of cases that ought to be coded as terrorism-related. This dispute came to a head in the spring of 2007 in connection with a report issued by the Department’s Inspector General, prompting the Executive Office for United States Attorneys (EOUSA) to revise its case code definitions. Whether the revised codes will suffice to resolve the data-reliability critique remains to be seen.

The soft-sentence critique in turn reflects the definitional dispute underlying the data-reliability critique; the Department’s inclusion of preventive charging cases (and other such cases not involving overt allegations of involvement with terrorism) in its terrorism-related statistical categories inevitably leads to relatively brief aggregate sentences. It does not follow, however, that the Department has obtained similarly-brief sentences in cases that do involve allegations of conduct relating in some fashion to terrorism. Rather than examining disposition and sentencing data solely based on the controversial EOUSA case categories, therefore, I advocate reliance also on data developed on a per-offense basis. I conclude the paper with an example of such a study, focused on two statutes: 18 U.S.C. § 2339B (prohibiting the provision of material support to designated foreign terrorist organizations) and 50 U.S.C. § 1705 (criminalizing transactions in violation of sanction orders issued under the International Emergency Economic Powers Act). The study includes all prosecutions under both statutes between 9/01 and 7/07 (for § 1705, actually, it includes only those prosecutions arising out of terrorism-related IEEPA orders), and finds that they yield sentences considerably more substantial than the low numbers emphasized in the soft-sentence critique.

This article contends that the first significant post-1789 clash between political liberties and the demands of security occurred in 1794, when Federalists made a concerted effort to delegitimize organized, non-electoral political dissent as practiced by the so-called Democratic-Republican Societies. The events associated with this effort provided the first occasion for sustained debate concerning the freedoms of expression, association, and the press, though the decentralized nature of the debate ultimately precluded any clear resolution.

This article provides a comprehensive review of legal issues--constitutional, statutory, regulatory, and international (IHRL and IHL)--that arise when a noncitizen held as an enemy combatant at Guantanamo requests judicial oversight of a decision to transfer that person back to their country of citizenship (a request that has been made on numerous occasions based on the detainee's fear that he will be tortured upon such a transfer). The article includes extensive discussions of the interplay of international and domestic legal authorities, as well as an analysis of the Geneva Convention status of detainees.

This piece, which appears in Michigan's annual Survey of Books issue, takes two books by David Cole (one co-authored with James Dempsey) as points of departure for a review of the liberty-security debate in the years shortly after 9/11. It begins with a discussion of theoretical models associated with "balancing" liberty and security, and then proceeds to review Cole's (and Dempsey's) work on a range of issues. The article includes my first efforts to explore the material support statutes, a topic I have explored in more detail in subsequent work.

This article provides a comprehensive overview of the law prohibiting the provision of material support to designated foreign terrorist organizations (as well as two related statutes). In it, I examine the origins of the statute, the manner in which it can be used to prosecute persons suspected of being potential terrorists, and an array of constitutional and security-based objections to the law. The article concludes with suggestions for reform.

This essay for HILJ Online responds to an earlier essay by State Department Legal Advisor John Bellinger on the topic of the Military Commissions Act. The essay's main purpose is to describe the issues that would arise should the Supreme Court accept or deny cert in the Boumediene case (the Supreme Court ultimately granted cert a few months after the essay was published).

For more than a century, the Supreme Court has maintained that federal judges should give deference to the views of the executive branch with respect to the interpretation of ambiguous language in international instruments. The Court has never adequately explained the theoretical justifications for such deference, however, and the doctrine is plagued with uncertainty and inconsistency as a result. Making matters worse, the Supreme Court's most recent forays into this area – especially Hamdan v. Rumsfeld – have exacerbated this instability. My aim in this article is to explain why the deference doctrine presents one of the most significant, yet least appreciated, problems in foreign-relations law today, as well as to offer a suggestion for solving the puzzle it presents.

Part I frames the discussion that follows by examining the controversial treatment of the deference issue in Hamdan.

Part II provides a thorough descriptive account of the doctrine. This section begins with a review of basic principles of treaty interpretation methodology, emphasizing the use of post-ratification practice as evidence of the understanding of treaty parties. This is followed by a brief recitation of the transformation of U.S. foreign relations law in the early-to-mid 20th century. Against this backdrop, I then trace the evolution of the deference doctrine in the Supreme Court from its late 19th century roots through to the present day. I conclude that the doctrine originally rested at least in part on the evidence-of-intent method of treaty interpretation, but that this aspect of the doctrine became obscured during and after the transformational era. Finally, in response to competing claims that the doctrine is either entirely dispositive or entirely rhetorical in terms of impacting case outcomes, I conclude the descriptive component of the paper by reporting the results of a survey of deference decisions at all levels of the federal judiciary during the Rehnquist era. The results demonstrate that the doctrine does not always result in victory for the executive viewpoint (though it usually does), but they are inconclusive with respect whether the doctrine ever serves as more than a rhetorical gloss on decisions that would have reached the same result in any event.

Part III then examines the normative arguments for and against deference, canvassing the many theoretical models that scholars have advanced in recent years. These models turn in significant part on underlying disagreements concerning the relative priority of competing constitutional values including functional efficiency and checking of power. I conclude with a proposal for a hybrid model of deference that attempts to reconcile these interests by, among other things, distinguishing between true deference and the mere use of post-ratification practice as proof of intent.

The state secrets privilege has played a central role in the Justice Department’s response to civil litigation arising out of post-9/11 counterterrorism policies, culminating in a controversial decision by Judge T.S. Ellis concerning a lawsuit brought by a German citizen—Khaled El-Masri—whom the United States allegedly had rendered (by mistake) from Macedonia to Afghanistan for interrogation. Reasoning that the “entire aim of the suit is to prove the existence of state secrets,” Judge Ellis held that the complaint had to be dismissed in light of the privilege. The government also has interposed the privilege in connection with litigation arising out of the National Security Agency’s warrantless surveillance program, albeit with mixed success so far.

These events amply demonstrate the significance of the state secrets privilege, but unfortunately much uncertainty remains regarding its parameters and justifications. Is it being used by the Bush administration in cases like El-Masri v. Tenet, as some critics have suggested, in a manner that breaks with past practice, either in qualitative or quantitative terms?

I address these questions through a survey of the origin and evolution of the privilege, compiling along the way a comprehensive collection of state-secrets decisions issued in published opinions since the Supreme Court’s seminal 1953 decision in United States v. Reynolds (the collection appears in the article’s appendix). Based on the survey, I find that the Bush administration does not differ qualitatively from its predecessors in its use of the privilege, which since the early 1970s has frequently been the occasion for abrupt dismissal of lawsuits alleging government misconduct. I also conclude that the quantitative inquiry serves little purpose in light of variation in the number of occasions for potential invocation of the privilege from year to year.

Recognizing that the privilege strikes a harsh balance among the security, individual rights, and democratic accountability interests at stake, I conclude with a discussion of reforms Congress might undertake if it wished to ameliorate the privilege’s impact. First, with respect to the problem of assessing the merits of a privilege claim, consideration could be given to giving the congressional intelligence committees an advisory role in the evaluation process (on a supermajority basis). Second, with respect to the problem of harsh consequences for plaintiffs once the privilege is found to attach, special procedures might be adopted to permit litigation to continue in a protected setting (at least where unconstitutional government conduct is alleged).

How early does criminal liability attach along the continuum between planning and committing a terrorist act? And in light of the answer to that question, have we struck an appropriate balance between the benefits of prevention and the off-setting costs in terms of a potentially-increased rate of false-positives and foregone opportunities to gather additional intelligence and evidence? These questions are pressing, particularly in light of statements from senior government officials that the Justice Department will be “forward-leaning” in its interpretation of its anticipatory-prosecution powers. My aim in this article is to establish a shared understanding regarding the first question in order to facilitate an intelligent debate regarding the second.

In some respects, this is well-trodden ground. I and others have written previously of the government’s sweeping capacity under 18 U.S.C. § 2339B to prosecute potential terrorists who can be linked in some fashion to a designated Foreign Terrorist Organizations (“FTOs”). But it is becoming clear that the utility of § 2339B is eroding in the face of several developments, most notably the ongoing decentralization of what might be called the “global jihad movement.” Simply put, it is becoming less common for a suspected terrorist to be vulnerable to a § 2339B FTO-support prosecution. What, then, is the government’s capacity for anticipatory prosecution when confronted with “unaffiliated” terrorism?

Setting aside the possibility of a “pretextual” charge based on some unrelated offense by a suspect, the basic options are a conspiracy charge under a terrorism-related provision such as 18 U.S.C. § 956(a) or a charge under 18 U.S.C. § 2339A, the lesser-known of the two material-support statutes. The article identifies the earliest plausible point of intervention under both options, and examines the extent to which indictments in post-9/11 prosecutions have stayed within these boundaries. My most notable conclusion, perhaps, is that § 2339A can be and arguably has been used to create a capacious form of inchoate liability in circumstances that otherwise would have to be charged under the relatively-demanding standards of attempt.