National Security Law

Samuel E. Schoenburg

On his first day in office, President Obama called for the closure of the military prison at Guantánamo Bay, Cuba. Near the end of Obama’s tenure, the prison remains open. This Note suggests a previously undiscussed path for the President to transfer most detainees from Guantánamo, despite congressional opposition, using a robust and exclusive executive tool: the pardon power. By granting conditional pardons to eligible Guantánamo detainees, the President could unilaterally move many to the mainland United States for continued, if limited, detention, and transfer others for repatriation elsewhere. In addressing the Guantánamo problem, this Note argues that pardons have been used and should be viewed as a crucial complement to presidential war powers. The Note concludes that granting clemency for Guantánamo detainees is not only legally defensible, but also consistent with constitutional structure, original understanding, and historical practice since the Founding.

Curtis A. Bradley & Jean Galbraith

There is a rich literature on the circumstances under which the United Nations Charter or specific Security Council resolutions authorize nations to use force abroad, and there is a rich literature on the circumstances under which the U.S. Constitution and statutory law allow the President to use force abroad. These are largely separate areas of scholarship, addressing what are generally perceived to be distinct legal issues. This Article, by contrast, considers these two bodies of law together as they relate to the United States. In doing so, it makes three main contributions. First, it demonstrates striking parallels between the structure of the international and domestic legal regimes governing the use of force, and it explains how this structure tends to incentivize unilateral action. Second, it theorizes that these two bodies of law are interconnected in previously overlooked ways, such that how the executive branch interprets law in one context can be and often is informed by the other legal context. Third, it documents these interactions over time for several important components of the law on the use of force and shows that this dynamic has played a significant role in justifying the practice-based expansion of unilateral war powers. The Article concludes by arguing that both scholars and policymakers seeking to shape the law on the use of force need to take better account of this interactive dynamic.

Andrew Lyubarsky

The Obama Administration has acted decisively to cure a long-standing wound the United States has inherited from the Cold War by seeking to normalize relations with Cuba. However, prospects for full normalization are currently impeded by over four billion dollars in judgments levied against Cuba by politically motivated state courts in Florida under the state sponsor of terrorism (SST) exception to the Foreign Sovereign Immunities Act. These judgments create a serious obstacle and impede Cuba and its companies from transferring any assets into the United States. Because these judgments purport to punish Cuba for acts occurring during and immediately after the Cuban Revolution and Cuba was only placed on the SST list in 1982 for supporting insurgent movements elsewhere in Latin America, the courts manifestly exceeded their subject matter jurisdiction in issuing them. Nevertheless, several federal courts have afforded them full faith and credit and begun to enforce them against Cuba’s existing assets in the United States.

This Note therefore argues that the President can and should exercise his power to espouse and settle international claims to resolve these judgments pursuant to a sole executive agreement, whether or not he is able to secure congressional acquiescence for his actions. In doing so, the President can lean on a long record of historical practice affirmed repeatedly by the Supreme Court and buttressed by recent settlements of terrorism claims with Iraq and Libya. Finally, the U.S. government should be able to avoid a takings claim by SST judgment holders after the judgments’ resolution by funneling their claims into the Foreign Claims Settlement Commission and providing for some fractional compensation.

Adrienne Lee Benson

A national security emergency justifying the elimination of full judicial review and remedies for executive action is often analyzed as an exceptional, distinctive challenge to the rule of law. However, the possibility of irreparable harm frequently supports bypassing judicial procedures in more pedestrian peacetime law, such as an exigent-circumstances exception to the Fourth Amendment’s warrant requirement or a preliminary injunction to avoid irreparable harm before a trial on the merits. While the scale may be different in national security crises, the problem is the same: how to maintain the rule of law when the traditional procedures and remedial doctrines of a reviewing institution may be ill-suited for avoiding irreparable harm in the time required for judicial review.

This Note uses the immunity provisions of the Habeas Corpus Act of 1863—in which Congress explicitly eliminated legal remedies during the greatest national crisis of American history—to illuminate the broader principles behind the availability of judicial remedies in exigent circumstances. In “routine” exigencies, such as a request for a preliminary injunction or exceptions to the warrant requirement, a shortcut around full procedure for the determination of rights and duties is permitted subject to the availability of judicial review after the intervention, and, often, compensation. The immunity provisions of the Habeas Corpus Act of 1863 cut off both of these remedial functions. Such immunities defeat the compensation purpose of remedies unnecessarily; as remedies in “routine” emergency interventions demonstrate, the compensation and judicial review functions need not always result in deterrence of executive action in a crisis. Immunity provisions such as those in the Act also hinder the development of the law and increase uncertainty for future actors and their possible future victims, even outside emergency situations. This Note argues that the best approach to judicial review in national security crises is not to eliminate remedies entirely, as the Habeas Corpus Act attempted to do, but to “code-switch” from a regime of property rules to a regime of liability rules in order to preserve victim compensation and the rule of law.

Ganesh Sitaraman & David Zionts

A decade of war has meant a decade of writing on war powers. From the authority to start a war, to restrictions on fighting wars, to the authority to end a war, constitutional lawyers and scholars have explored the classic issues (war initiation, prosecution, and termination) through the classic prisms (text, history, and function) for a new generation of national security challenges. Despite the volume of writing on war powers and the urgency of the debates in the context of Iraq, Afghanistan, Libya, and Syria, war powers debates are widely seen as stagnant. We introduce a new set of perspectives into the war powers literature. Over the last four decades, behavioral psychologists have identified persistent biases in individual and group decisionmaking. The behavioral revolution has had a significant impact on legal scholarship—primarily in law and economics—and has also influenced scholars in international relations, who increasingly write about psychological biases and other decisionmaking challenges. These insights, however, have yet to be applied in the war powers context. This Article brings the behavioral literature into the conversation on war powers, showing how lessons from behavioral psychology are relevant to decisions on war and peace. It outlines a variety of psychological biases that bear on decisions about war and peace, applies these lessons to a variety of war powers debates, and discusses broader institutional design strategies for debiasing decisionmaking. The lessons of psychology provide new functional perspectives on classic war powers debates: the authority of Congress versus the President to initiate wars, the scope of presidential authority to use force, the ability of Congress to restrict the conduct of war, the War Powers Resolution and the termination of wars, and the role of the United Nations. Some of the decisionmaking biases point in conflicting directions, so there are no simple answers or tidy solutions. But understanding where important decisions risk going wrong is the first step in figuring out how to make them go right.

Daniel Michaeli

A federal law known as the Jones Act imposes citizen ownership and control requirements on owners and operators of ships that transport goods between U.S. ports. Scholars have consistently presumed that these requirements are enforceable. This Note demonstrates, however, that limiting foreign ownership in companies with widely dispersed shareholders has become legally and practically infeasible in modern U.S. securities markets. It sheds light for the first time on the Seg-100 program of the Depository Trust Company, which aims to resolve this problem but would ultimately, even with substantial changes, be unable to discern the citizenship of entities that are not natural persons—a vast majority of shareholders. After considering the Jones Act’s ownership and control restrictions in the context of U.S. national security and economic interests, the Note finds that both practical considerations and U.S. interests support elimination of the citizen ownership and control requirements. Recognizing that Congress may be unwilling to invite unrestricted foreign investment in coastwise shipping, it also proposes more limited reforms to foreign ownership limitations and administrative actions that could reduce, but not eliminate, unnecessary costs of the current system.

Samuel J. Rascoff

It has been widely assumed that deterrence has little or no role to play in counterterrorism on the grounds that the threat of punishment is powerless to dissuade ideologically inspired terrorists. But an emerging literature in strategic studies argues, and aspects of contemporary American national security practice confirm, that this account misunderstands the capacity of deterrence to address current threats. In fact, a great deal of American counterterrorisma cluster of refinements to traditional deterrence theory that speaks to a world of asymmetric threats. Yet the emergence of new deterrence has been largely lost on lawyers, judges, and legal academics, resulting in significant gaps between the practice of national security in this area and the legal architecture ostensibly designed to undergird and oversee it. In particular, the legal framework of counterterrorismprecisely the two fields thought to converge in counterterrorism. In this Article, I debut in legal scholarship a sustained analysis of new deterrence and highlight its consequences for national security law, thus ushering in a serious reckoning for jurists with counterterrorism deterrence.

Samuel Issacharoff & Richard H. Pildes

Legitimacy of the use of military force is undergoing a fundamental but insufficiently appreciated moral and legal transformation. Whereas the traditional practices and laws of war defined enemy forces in terms of categorical, group-based judgments that turned on status—a person was an enemy not because of any specific actions he himself engaged in but because he was a member of an opposing military force—we are now moving to a world that, implicitly or explicitly, requires the individuation of enemy responsibility of enemy persons in order to justify the use of military force. Increasingly, the legitimate use of military force is tied to quasi-adjudicative judgments about the individual acts and roles of specific enemy figures; this is the case whether the use of force involved is military detention or targeted killing. This transformation transcends conventional debates about whether terrorist actions should be treated as acts of war or crime and is more profound in its implications. 

This readjustment in the basic premises underlying the justified use of military force will have, and is already having, implications for all the institutions involved in the use of military force and in the processes by which decisions are made to use force. For the military, this change will generate pressures to create internal, quasi-adjudicative processes to ensure accurate, credible judgments about the individual responsibility of particular enemy fighters. For the executive, these changes will propel greater engagement in decisions that had previously been exclusively within the province of the military. For the courts, this transformation toward individuated judgments of responsibility will inevitably bring about a greater judicial role in assessing wartime judgments than in the past; this expansion has begun to occur already. These changes are not yet directly reflected (or at least fully reflected) in the formal laws of war, but we anticipate that as these changes embed themselves in the practices of states, especially dominant states, these changes in practice will also eventually be embodied in the legal frameworks that regulate the use of force. This Article will identify this fundamental transformation as the central factor driving struggles over the proper boundaries of military force and then explore the ramifications of this change for issues like military detention and targeted killings.

Benjamin S. Mishkin

Since the September 11th attacks, local law enforcement agencies in major metropolitan areas have become increasingly involved in counterterrorism and intelligence activities. Unfortunately, this development has not yet spurred a comparable increase in intelligence oversight. Indeed, at the local level, intelligence activities are conducted largely in a “formal governance vacuum.” This situation is unsustainable. Local formal oversight mechanisms are desperately needed. Whether local actors are actually up to the intelligence oversight task is another question. And it is a question that has yet to be answered in a satisfactory manner. Skeptics have written off local overseers with little explanation, while advocates of local intelligence oversight have endorsed local overseers without apparent consideration of their viability. This Note seeks to provide a comprehensive answer. Drawing upon lessons from oversight of the federal intelligence community, this Note demonstrates that the federal intelligence oversight apparatus is a workable model for the local context.

Jose F. Irias

In Boumediene v. Bush, the Supreme Court held that the right to the writ of habeas corpus extended to noncitizen detainees captured abroad and detained at the American naval base in Guantánamo Bay, Cuba. Although Boumediene extended habeas corpus to Guantánamo and formulated a practical extraterritorial habeas corpus framework, the decision may have been a limited victory for civil rights advocates, as it did not resolve the question of the writ’s reach to any other American detention facilities located abroad, including the Bagram Theater Internment Facility in Afghanistan. In Al Maqaleh v. Gates, the D.C. District Court concluded that the petitioners detained at Bagram, like those at Guantánamo, had the right to petition for the writ of habeas corpus, but the D.C. Circuit reversed the lower court on appeal. The D.C. District and Circuit courts came to different conclusions because they took drastically different approaches to the Boumediene framework. This Note argues that the district court came to the right conclusion because its analysis was more faithful to Boumediene, it was more conscious of Boumediene’s separation-of-powers concerns, and, like the Supreme Court, it was appropriately receptive to the possibility that the Executive was attempting to “switch off” the Constitution by strategically detaining suspected enemy combatants in a location unlikely to receive judicial review. Furthermore, the fact that the district and circuit courts were unable to apply the framework consistently suggests that the Boumediene analysis may require refinement or clarification. This paper attempts to provide that.