Georgetown Security Law Commentary

Scholarship: "Institutional Legitimacy and Counterterrorism Trials"

"Institutional Legitimacy and Counterterrorism Trials” by Gregory S. McNeal (Pennsylvania State University - Dickinson School of Law)

Scholarship: "Cyber-Deterrence"

"Cyber-Deterrence" by K. A. Taipale (Center for Advanced Studies in Science and Technology Policy). Traditional strategies of deterrence as generally applied in national security and law enforcement have focused primarily on raising the cost of undesirable behavior in order to discourage that conduct. But the traditional emphasis on imposing a cost or penalty on a specific adversary alone may not be sufficient in cyberspace because of its particular characteristics - in particular because of its dual use nature, the difficulty in differentiating a probe from an attack, the scale-free and unbounded nature of potential consequences, and the limited capabilities for definitive attribution. This chapter examines a new model of deterrence based on four factors: penalty (the traditional notion of retaliation), futility (the notion of frustrating attack through resilience or recovery thus eliminating any gain to the attacker), dependency (the notion of interdependence as moderating influence), and counter-productivity (the notion that collateral backlash can check behavior). HT to National Security Advisors.

Scholarship: Various articles on Private Security Contractors

"Litigating Abuses Committed by Private Military Companies" (European Journal of International Law) by Cedric Ryngaert (Ludwig Maximilians University). The article identifies the jurisdictional opportunities and pitfalls of criminal (public law) and civil/tort (private law) litigation against PMCs in domestic courts. The focus lies on litigation for human rights abuses, with special emphasis on US proceedings. It is argued that, because the chances of success of tort litigation are, in fact, rather limited in the US, given the many procedural obstacles, the criminal law avenue may prove to be more promising. Also, criminal litigation may be preferable on the ground that criminal punishment sends a stronger accountability and deterrence signal than a mere money judgment.

"Individual Liability of Private Military Personnel Under International Criminal Law" (European Journal of International Law) by Chia Lehnardt (New York University School of Law).  This article examines the present status of private military personnel under international criminal law. Because the system of order and obedience essential to military entities cannot be simply presumed to exist within a private military company (PMC) or between a PMC and the hiring state, the private nature of the company may become an issue, particularly when one considers the capacity of their personnel to commit war crimes or to incur superior or command responsibility. The article also considers problems of implementation and jurisdiction and the question of corporate criminal responsibility of the PMC itself. It argues that, in theory, international criminal law can be an efficient part of the legal regime governing the use and conduct of private military companies, although many of the legal issues discussed remain to be tested.

"Passing the Buck: State Responsibility for Private Military Companies" (European Journal of International Law) by Carsten Hoppe (European University Institute).  Relying on the International Law Commission's Articles on State Responsibility, this article compares the responsibility of states for illegal conduct of their soldiers with that which states incur with respect to the illegal conduct of contractors they hire. It reveals a regulatory gap which states seeking to reduce their exposure to international responsibility can exploit. It is then argued that the conduct of certain contractors exercising coercive functions can be attributed to the hiring state under Article 3 of Hague Convention IV of 1907 and Article 91 of Additional Protocol I. Where this is the case, the state will be responsible for their conduct as it would be for that of its soldiers.

"EU Operations and Private Military Contractors: Issues of Corporate and Institutional Responsibility" (European Journal of International Law) by Nigel D. White (University of Nottingham) and Sorcha MacLeod.  The European Union has put pressure on its Member States to provide troops for the increasing number of EU peace operations being deployed to different areas of the globe. But with national militaries being rationalized and contracted the EU will inevitably follow the lead of the US, the UK, and the UN and start to use Private Military Contractors to undertake some of the functions of peace operations. This article explores the consequences of this trend from the perspective of the accountability and responsibility of both the corporation and the institution when the employees of PMCs commit violations of human rights law and, if applicable, international humanitarian law.

"A Corporate Alternative to United Nations Ad Hoc Military Deployments" (Journal of Conflict & Security Law) by Malcolm Patterson (University of Sheffield).  This article considers whether ad hoc UN peacekeepers might be augmented or replaced by private security contractors; and whether well-trained contractors might in future subdue by force those who inflict gross human rights abuses on others. There exists no compelling reason in law why the UN should not devise modern contracts that evolve from historically ubiquitous arrangements amongst its members. The deployment of disciplined, professional contractors under rigorous conditions may offer improvements on present standards of peacekeeping.

"Humanitarian Assistance and the Private Security Debate: An International Humanitarian Law Perspective" by Benjamin Perrin (University of British Columbia).  The implications of humanitarian organizations using private security companies for defensive armed protection have been relatively unexplored, particularly with respect to international humanitarian law. This paper aims to address this shortcoming by considering two threshold questions: is the protected status of humanitarian personnel under international humanitarian law suspended or lost if they use armed private security contractors; and, is humanitarian access to provide relief legally affected by the decision to hire a private security company for armed protection of relief consignments?

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: "Police and National Security: American Local Law Enforcement and Counter-Terrorism after 9/11"

"Police and National Security:American Local Law Enforcement and Counter-Terrorism after 9/11" by Matthew C. Waxman (Columbia Law) in Police, Community and the Rule of Law, Ben Bowling and Jeffrey Fagan, eds.  The decentralized and localized nature of most law enforcement in the United States give rise to three challenges for policing and national security. First, it creates enormous organizational problems in coordinating national security activities, and combating terrorism in particular. Second, the national counter-terrorism agenda may disrupt political accountability of local police. Third, it creates difficulties in carrying out more traditional policing functions. How these challenges are resolved depend not only on political responses but on the national security threats that spawn them.

Scholarship: "Administrative Detention of Terrorists: Why Detain, and Detain Whom?"

"Administrative Detention of Terrorists: Why Detain, and Detain Whom?" (Columbia Law School Journal of National Security Law & Policy) by Matthew C. Waxman (Columbia Law).  This article argues that both sides of the debate over administrative detention analyze the problem and propose solutions backwards: they begin by focusing on procedural issues and institutional design rather than first deciding (1) what is the strategic purpose of proposed new law, and (2) whom does it therefore aim to detain. Only after answering these questions can the procedural and institutional details be drawn up and proposals weighed intelligently. It then recommends some answers to those questions and proposes appropriate, corresponding procedural and institutional architecture.

Scholarship: "Terrorism, Criminal Prosecution, and the Preventive Detention Debate"

"Terrorism, Criminal Prosecution, and the Preventive Detention Debate" (South Texas Law Review) by Robert Chesney (Wake Forest Law).  This article focuses on the ability of the criminal justice system to preventively detain dangerous people.  It argues that the charges available to prosecutors compare well to the military detention system and the military commissions system.  However, there are three sets of procedural safeguards that do tend to limit the reach of the criminal justice system in comparison to existing or proposed alternatives: (i) mandatory disclosure concepts; (ii) Confrontation Clause (and hearsay) concerns; and (iii) the burden of proof.  It concludes with modest steps Congress might take to optimize the criminal justice system for the task of prevention-oriented prosecution.

Scholarship: "Enacting Counter Terrorism Financing Laws in the UAE and Bahrain: The Fusion of Global Pressures, Regional Dynamics, and Local Interests"

"Enacting Counter Terrorism Financing Laws in the UAE and Bahrain: The Fusion of Global Pressures, Regional Dynamics, and Local Interests" (Mediterranean Programme, Robert Schuman Centre for Advanced Studies, European University Institute) Carlos L. Yordan (Drew University).  After the terrorist attacks of 11 September 2001, the UN Security Council passed Resolution 1373, obligating all states to enact new laws that criminalized activities related to terrorism, and making laws against terrorism financing a priority. This paper analyzes the reasons that inform the UAE's and Bahrain's decision to comply with these financial standards. Both are becoming important global financial hubs and their compliance has been used to attract foreign investments. Moreover conformity with these rules, which are similar to the ones found in the USA PATRIOT Act, shows their commitment to Washington's global war on terror, but without having to publicly support America's strategies.  HT to National Security Advisors.

Scholarship: "Preventive Detention in the War on Terror: A Comparison of How the United States, Britain, and Israel Detain and Incapacitate Terrorist Suspects"

"Preventive Detention in the War on Terror: A Comparison of How the United States, Britain, and Israel Detain and Incapacitate Terrorist Suspects" Homeland Security Affairs (Oct. 2008) Stephanie Cooper Blum.  While the need for preventive detention in the United States is legitimate, the Administration asserts that its decision-making process to label individuals as enemy combatants should reside exclusively within the executive branch, thereby bypassing the checks and balances that comprise America's democratic system. Israel and Britain have shown that democracies facing comparable terrorist threats can implement preventive detention policies that are not based on unilateral executive usurpation of power. This article explores whether any insights can be gleaned from Israel's and Britain's forms of preventive detention in order to make a recommendation to the next Administration.  HT to National Security Advisors.

Scholarship: "A Legal Framework for Detaining Terrorists: Enact a Law to End the Clash over Rights"

"A Legal Framework for Detaining Terrorists: Enact a Law to End the Clash over Rights" (Brookings) by Benjamin Wittes.  The article argues that developing rules for detaining suspected enemies engaged in unconventional warfare against the United States is the core challenge facing American legal policy in the war on terror.  It goes on to offer specific elements of a long-term detention regime that President Obama should enact:  (1) An impartial decision-maker in charge of making status determinations; (2) Basic procedural protections for detainees, including the assistance of counsel, the ability to see a reasonable summary of the government's evidence, and the ability to call witnesses; (3) A written, public opinion explaining the basis for each status determination, and review of such determinations by federal civilian courts; and (4) For those deemed properly subject to detention, some form of regularized ongoing judicial review to ensure that continued detention is necessary and appropriate.