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: "Law, War, and the History of Time"

"Law, War, and the History of Time" by Mary L. Dudziak (University of Southern California Law School)

Scholarship: Journal of International Criminal Justice

07/08/09: The latest issue of the Journal of International Criminal Justice is out. Contents include:

• Jens Meierhenrich & Keiko Ko, How Do States Join the International Criminal Court?: The Implementation of the Rome Statute in Japan
• Symposium: The Arrest Warrant against the President of Sudan: Reasoning and Implications of the ICC Decision
  • Salvatore Zappalà, Foreword
  • Robert Cryer, The Definitions of International Crimes in the Al Bashir Arrest Warrant Decision
  • Claus Kreß, The Crime of Genocide and Contextual Elements: A Comment on the ICC Pre-Trial Chamber's Decision in the Al Bashir Case
  • Harmen G. van der Wilt, The Continuous Quest for Proper Modes of Criminal Responsibility
  • Paola Gaeta, Does President Al Bashir Enjoy Immunity from Arrest?
  • Dapo Akande, The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir's Immunities
• Cecily Rose, Troubled Indictments at the Special Court for Sierra Leone: The Pleading of Joint Criminal Enterprise and Sex-based Crimes
• Róisín Mulgrew, On the Enforcement of Sentences Imposed by International Courts: Challenges Faced by the Special Court for Sierra Leone

HT to the International Law Reporter.

Scholarship: "Directing Military Operations"

"Directing Military Operations" (Texas Law Review, 2009) by Michael D. Ramsey (University of San Diego School of Law).

Scholarship: Human Rights Law Review

06/22/09: The latest issue of the Human Rights Law Review (Vol. 9, no. 2, 2009) is out. Contents include:

• Alastair Mowbray, An Examination of the European Court of Human Rights' Approach to Overruling its Previous Case Law
• Aoife Nolan, Addressing Economic and Social Rights Violations by Non-state Actors through the Role of the State: A Comparison of Regional Approaches to the 'Obligation to Protect'
• Helen Keller & Andreas Fischer, The UN Anti-terror Sanctions Regime under Pressure
• Matthew E. Cross & Sarah Williams, Recent Developments at the ICC
• David Jenkins, Habeas Corpus and Extraterritorial Jurisdiction after Boumediene: Towards a Doctrine of 'Effective Control' in the United States

HT to International Law Reporter.

Scholarship: "Europe, Guantanamo and the 'War on Terror': An Exchange"

In Survival (subscription), Sibylle Scheipers discusses the role of US President Barack Obama's moves to reform the detention system as a step towards renewing close transatlantic ties and facilitating transatlantic cooperation. But she also argues that it poses a difficult challenge to Europeans. Nigel Inkster, Robert Whalley, and Matthew Waxman comment, and Scheipers responds.

Merging the NSC and the HSC: A Legal Footnote

By: Justin Rubin, Senior Counsel, Legal Affairs Department of the Project on National Security Reform

Last Tuesday, the President announced the merger of the staffs of the National Security Council (NSC) and Homeland Security Council (HSC) within one National Security Staff.  The President, however, did not merge the Councils themselves, instead maintaining them as two separate entities.  The public discussion, and comments from White House aides, indicate that the President took this step because he could not legally merge the two Councils without a new Congressional enactment.  A close legal analysis, however, makes clear that the President has ample authority to merge the two entities without Congressional approval.  

The President’s decision comes after a 60-day review of the current structures of the HSC and NSC and whether the integration of those bodies would enhance our nation’s security.  Though the President concluded after the review that merging the HSC and NSC staffs would more effectively integrate the instruments of national power, in contrast to many people’s expectations, he decided not to abolish the HSC.  In fact, the White House pledged to maintain the HSC "as the principle venue for interagency deliberations on issues that affect the security of the homeland."  Though the President’s decision to merge the two staffs is a much-needed and welcome change, maintaining two separate Councils reflects a specific choice to preserve a distinct body for advising the President on threats to the homeland such as terrorism, natural disasters, health-related crises and weapons of mass destruction.

The confusion over the merger’s legality was highlighted by Spencer Hsu’s article in last Wednesday’s Washington Post, attributing to unnamed White House aides two reasons for maintaining the HSC:  "Doing so will improve state and local officials' access to the White House and does not require an act of Congress." While the first may be true – it is essential that state and local officials have sufficient access to the White House homeland security coordination body – the second, which implies that the further integration of the Councils requires statutory authorization, is not.  The President does have the authority to merge the Councils and his decision not to merge them should be viewed in that light.

The National Security Council and Homeland Security Council were created by the National Security Act of 1947 and the Homeland Security Act of 2002, respectively.  The acts establish the Councils, set their membership, make them responsible for advising the President on interagency coordination, and create two separate staffs reporting to two separate Executive Secretaries. Merging the two Councils, as the President’s actions demonstrate, requires two unique legal decisions: whether to merge the two Councils’ staff and whether to merge the two Councils, which both currently exist in statute. Contrary to the view expressed in Spencer Hsu’s article and elsewhere, the President has the legal authority to do both.

First, the President has clear legal authority to merge the Council staffs.  While the statutes create separate NSC and HSC staffs reporting to statutorily created NSC and HSC Executive Secretaries, the laws do not require that the staffs, or the Executive Secretaries, be different. The President, therefore, can merge the Councils’ staffs into one staff by dual-hatting one individual as both the NSC and HSC Executive Secretary and require that the staff serve as a single unit reporting to that one individual.  This requires no legal change.

Second, despite claims that merging the HSC and NSC would require an act of Congress, the President has multiple means to effect a de facto merger of the two Councils without a statutory change.  Firstly, the Homeland Security Act gives the President the authority to "convene joint meetings of the Homeland Security Council and the National Security Council with participation by members of either Council or as the President may otherwise direct." 6 U.S.C. 496. This statute gives the President both the authority to call joint meetings and to choose who shall participate in such meetings – a power the President traditionally exercises, but does not statutorily have.  As a result, using this authority, the President could merge the two Councils by designating all future NSC and HSC meetings as joint meetings.

A second option for merging the Councils would be to call meetings of only one of them.  While the Councils are tasked with advising the President, neither the National Security Act nor the Homeland Security Act requires the President to call meetings of either. This reflects the limits of congressional authority: Congress has no Constitutional authority to require the President to listen to specific individuals’ or Councils’ advice.  In fact, even President Truman, who signed the NSC into existence, questioned the constitutionality of the NSC on such grounds.  See Cody M. Brown, The National Security Council: A Legal History of the President’s Most Powerful Advisors, Project on National Security Reform 10 (2008). As a result, had President Obama so desired, he could have merged the Councils by placing traditional homeland security issues within the jurisdiction of the NSC and inviting department heads, such as the Secretaries of Homeland Security and Transportation, to relevant meetings of the NSC as he is empowered to do by the National Security Act of 1947.  This approach would merely require not calling meetings of the HSC, clearly within the President’s constitutional and statutory authority, and would, in effect, merge the Councils.

It is curious that White House aides would cite the need for Congressional action as a reason for the President’s decision to merge the Council staffs, but not the Councils themselves.  The President has ample authority, given to him by the Constitution and the Congress to merge the NSC and HSC.  Though we do not know, beyond the statements attributed to White House aides, whether this was a real concern, it should not have been.  While many policy and political arguments exist for keeping separate Councils – including enabling state and local officials’ to access the White House, maintaining a forum focused purely on homeland security issues, allowing the President and future presidents greater flexibility in deciding how to use the NSC and the HSC, and, potentially, avoiding a political fight with those in Congress who oppose merger – the need for an act of Congress is not one of them. 

Rubin’s views are not necessarily representative of PNSR’s.

Scholarship: Recent articles on terrorist financing

"Microfinancing Terrorism: A Study in Al Qaeda Financing Strategy" (in State of Corruption, State of Chaos: The Terror of Political Malfeasance, M. Cox, ed., 2008) by Tolga Koker (Yale University) and Carlos L. Yordan (Drew University). This article explains why individuals support the work of charities that support jihadist operations, even when they may not agree with these organizations' agenda. It first explains why al Qaeda and other jihadist groups use charities to raise most of their funds. It then introduces a behavioral model, arguing that individual Muslims donate monies to Islamist charities that support jihadist causes as a response to social pressures, in an attempt to avoid social seclusion. It concludes with policy implications in the ongoing global struggle against terrorism. HT to National Security Advisors.

"Bank Liability Under the Anti-Terrorism Act: Dispelling the 'Routine Banking Services' Defense in Material Support Cases"  by Stephen I. Landman (Catholic University of America - Columbus School of Law). This article evaluates civil liability for financial institutions that provide material support to terrorist organizations, analyzing the development of the ATA and related legislation proscribing material support to terrorist groups and highlighting the evolving statutory construction by looking to the body of case law surrounding lawsuits against the terrorist support network. Using the lawsuit filed on behalf of Daniel Pearl as a case study, this article concludes that a broad interpretation of the statute is not only in line with the legislative intent of the ATA, but is also the only way in which it can be effective in halting terrorist financing.

"The Best Tool for the Job: The U.S. Campaign to Freeze Assets of Proliferators and their Supporters" (Virginia Journal of International Law, 2009) by CarrieLyn Donigan Guymon (Golden Gate University School of Law). This article reviews the legal framework in the United States for freezing the assets of individuals and entities engaged in proliferation-related activities. It argues that the United States and the international community must maintain nonproliferation sanctions because these sanctions protect the integrity of the national and global systems and actors within the jurisdictions imposing them. Regardless of their impact on the target, nonproliferation sanctions must be used to send that strong signal of abhorrence for proliferant behavior.

"EU Law, International Law and Economic Sanctions Against Terrorism: The Judiciary in Distress?" (Fordham International Law Journal, Forthcoming) by P. Takis Tridimas (Queen Mary University of London) and Jose A. Gutierrez-Fons (Queen Mary University of London, School of Law). This article examines the relationship between European Union law, international law, and the protection of fundamental rights in the light of Kadi, Al Barakaat, and other recent case law of the European Court of Justice (ECJ) and the Court of First Instance (CFI) relating to economic sanctions against individuals.

Scholarship: "Closure, Caution and the Question of Chilling: How Have Australian Counter-Terrorism Laws Affected the Media?"

"Closure, Caution and the Question of Chilling: How Have Australian Counter-Terrorism Laws Affected the Media?" (Media & Arts Law Review, 2009) by Lawrence McNamara (University of Reading - School of Law). This article considers the proposition that Australia's counter-terrorism laws restrict the ability of the media to report on matters related to terrorism and security. It begins by examining the potential effects of these laws on the media's ability to access and publish information about terrorism offences. It then presents the findings of a project that explores the actual effects of the laws. It argues that counter-terrorism laws have had substantial direct effects on court reporting and, while it cannot yet be said that there is a chilling effect, a very worrying range of issues remains and the laws have indirect effects on the media which are detrimental and complex.

Scholarship: "Boumediene's Quiet Theory: Access to Courts and the Separation of Powers"

"Boumediene's Quiet Theory: Access to Courts and the Separation of Powers" (Notre Dame Law Review, Vol. 84, 2009) by Stephen I. Vladeck (American University Washington College of Law). At the core of Justice Kennedy's majority opinion in Boumediene v. Bush are his repeated suggestions that habeas corpus is an integral aspect of the separation of powers. At least where habeas corpus is concerned, it seems clear from Boumediene that the purpose of judicial review appears to be as much about preserving the role of the courts as it is about protecting the individual rights of the litigants. This article takes on this "quiet theory" behind Kennedy's opinion and asks whether it might have applications beyond the unique context of habeas corpus, especially with regard to the more general constitutional right of access to the courts. Access to courts is as much about protecting the courts as it is about vindicating the individual rights of litigants. Thus, going forward, Boumediene might do more than just answer the circumstance-specific question about habeas corpus rights for non-citizens detained as "enemy combatants"; it might provide the starting point for a new theory of access to the federal courts in particular that could allow us to rethink a number of tenets of federal courts doctrine.