Showing posts with label Terrorism. Show all posts
Showing posts with label Terrorism. Show all posts

April 30, 2014

The Posse Comitatus Act and Today's Navy

Mark Nevitt, U. S. Navy Judge Advocate General's Corps, is publishing Unintended Consequences: The Posse Comitatus Act in the Modern Era in the Cardozo Law Review. Here is the abstract.
America was born in revolution. Outraged at numerous abuses by the British crown — to include the conduct of British soldiers in the colonists’ daily lives — Americans declared their independence, creating a new republic with deep suspicions of a standing Army. These suspicions were intensely debated at the time of the nation’s formation and enshrined in the Constitution. But congressional limitations on the role of the military in day-to-day affairs would have to wait. They were not put in place until after the Civil War when southern congressmen successfully co-opted the framers’ earlier concerns of a standing Army and passed a criminal statute — the 1878 Posse Comitatus Act (“PCA”) — that restricted the ability of the Army to be used as a “posse comitatus” to “execute the laws.” Today, the PCA’s history and scope are often misunderstood with continual unintended consequences for today’s modern military that is far removed from the law’s earlier constitutional and statutory origins.

This article addresses a significant unintended consequence in the modern era: the PCA’s peculiar modern application to the Navy. The text of the PCA is silent on the Navy, yet the Department of Defense has determined that the PCA applies to the Navy worldwide. The early civil libertarian concerns that originated with the birth of the republic and at the time of the PCA’s passage are based on concerns over a standing Army. These are fundamentally distinguishable from the Navy, the maritime-based armed force that largely operates on the high seas, far away from America’s geographic borders and removed from its citizenry. The Navy’s mission includes the maintenance of freedom of the seas to include the suppression of piracy. But the DoD’s application of the PCA to the Navy limits its ability to participate in the full array of maritime missions — of continual concern with the rise of maritime terrorism that continually blurs the line between law enforcement and military activities. Building on the Navy example, this article concludes by offering recommendations to remedy this historical incongruity while touching upon other areas — such as the rise of the National Security Agency and the complex modern military organization — where the PCA and associated civil-military relationship need further re-examination.

Download the article from SSRN at the link. 

March 20, 2012

International Law, Torture and "24"

Knut Fournier has published Torture Justification in ‘24’: Aesthetics of the Bush Administration

In the context of the War on Terror, fiction is a support of ideologies for the Bush administration. The TV series '24' resorts on all legal justifications of torture made by the Bush administration, and justifies torture as being necessary, effective, and lawful. In that justification process, the thesis of the main international lawyers supportive of the Bush doctrines are used in a very detailed way, maintaining a 'simulacra' in the sense of Baudrillard.
Download the paper from SSRN at the link. NB: The text is in French.

September 28, 2011

Free Speech and the Fight Against Terrorism

Owen Fiss, Yale University Law School, has published The World We Live In, at 83 Temple Law Review 295-308 (Winter 2011).
This Essay focuses on a threat to our constitutional order — the curtailment of freedom of speech in the name of fighting terrorism. Specifically, my subject is the Supreme Court’s decision last June in Holder v. Humanitarian Law Project, which upheld the authority of Congress to criminalize political advocacy on behalf of foreign terrorist organizations. Like warrantless wiretapping, the risk of a criminal prosecution for political advocacy — for example, an utterance by an American citizen in an American forum that a foreign terrorist organization has a just cause — poses a threat to our democracy, but the danger is greater. The risk of warrantless wiretapping inhibits speech; the risk of a criminal prosecution stops it altogether.

Download the article from SSRN at the link.

February 24, 2011

Terrorism and Armed Conflict

Andrea Bianchi, Graduate Institute of International and Development Studies, has published Terrorism and Armed Conflict: Insights from a Law & Literature Perspective at 24 Leiden Journal of International Law 1 (2011). Here is the abstract.
This article examines some selected issues relating to terrorism and international humanitarian law (IHL): the characterization of the nature of armed conflicts in which armed groups, qualified as ‘terrorist,’ are involved; terrorism as a war crime; and the determination of the status and treatment (including detention) of terrorist suspects apprehended in the course of an armed conflict. The analysis emphasizes the importance of legal categories and legal qualifications of factual situations for the purpose of determining the applicable law as well as the crucial importance of taking societal practice into account when evaluating the state of the law in any given area. The main focus of the article, however, is on providing a few basic insights, drawn from the law & literature movement, on international humanitarian law and terrorism. Short of any epistemological ambition, literature is used as a remainder that the law is not a set of neutral rules, elaborated and applied independently of context and historical background; that the human condition remains central; and that legal regulation cannot be oblivious to it. Finally, mention is made of interpretive techniques, developed in the field of literary studies, that may help establish social consensus on the interpretation of IHL grey areas.

The full text is not available from SSRN.