Georgetown Security Law Commentary

Scholarship: "Legislating Clear-Statement Regimes in National-Security Law"

"Legislating Clear-Statement Regimes in National-Security Law" Jonathan F. Mitchell University of Chicago Law. Congress's national-security legislation will often require clear and specific congressional authorization before the executive can undertake certain actions. The War Powers Resolution, for example, prohibits any law from authorizing military hostilities unless it "specifically authorizes" them. And the Foreign Intelligence Surveillance Act of 1978 required laws to amend FISA or repeal its "exclusive means" provision before they could authorize warrantless electronic surveillance. But efforts to legislate clear-statement regimes in national-security law have failed to induce compliance. The Bush Administration inferred congressional "authorization" for the NSA surveillance program from ambiguous language in the post-September 11th Authorization to Use Military Force. Recent proposals to strengthen the clear-statement requirements in Congress's national-security framework legislation are unlikely to be effective without institutional mechanisms, such as points of order, that can deter future legislators from enacting vague or ambiguous legislation from which the executive might claim implicit congressional "authorization," and that can induce Congress to confront Presidents that act without specific congressional authorization.

Scholarship: "National Security Courts: Star Chamber or Specialized Justice?"

"National Security Courts: Star Chamber or Specialized Justice?" Mark R. Shulman, Pace University School of Law. ILSA Journal of International and Comparative Law, Vol. 15, No. 2, Spring 2009. In October 2008, the author moderated a panel discussion addressing the utility of establishing a new national security court system for administering the detention and trial of terrorist suspects. The discussion featured comments by  Richard Zabel, co-author of In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts; Glenn L. Sulmasy, author of the forthcoming book, The National Security Court System: A Natural Evolution of Justice in an Age of Terror; Hina Shamsi, author of various works on torture and extraordinary rendition; Gabor Rona, who has written extensively on the application of international human rights and humanitarian law to terrorism; and Matthew C. Waxman, author of "Detention As Targeting: Standards of Certainty and Detention of Suspected Terrorists."

Scholarship: "Finding the Tort of Terrorism in International Law"

"Finding the Tort of Terrorism in International Law" by Beth Van Schaack, Santa Clara University School of Law.  This article focuses on the potential of the Alien Tort Statute (ATS) to serve as a vehicle for asserting civil claims in U.S. courts for acts of terrorism. Although this paper primarily considers terrorism torts under the "law of nations" prong of the ATS (which requires a showing that the relevant prohibition is part of customary international law), terrorism torts may provide a vehicle for activating the ATS's dormant treaty prong as well, given the strong support for the terrorism treaties exhibited by the United States and the high degree of domestic incorporation of the crimes identified therein.

Scholarship: "Closing the Guantanamo detention center: Legal issues"

"Closing the Guantanamo Detention Center: Legal Issues" by CRS legislative attorneys Michael John Garcia, Elizabeth B. Bazan, R. Chuck Mason, Edward C. Liu, and Anna C. Henning summarizes the legal issues that would arise in the event of executive or legislative action to close Guantanamo Bay detention camp.