I was recently interviewed by Patty Satalia, a journalist with WPSU a PBS and NPR affiliate.  The interview was approximately one hour long (divided into segments) and questions ran the gamut from a discussion of the challenges the President will face in closing Guantanamo, to lessons from the CIA memos.  We also discussed similarities and differences between President Bush and President Obama, the role of the courts and Congress in these debates, and other related topics. 

The interview is available for viewing at http://conversations.psu.edu.  Readers who want to offer feedback can also comment on the “discussion board” immediately below the videos.  I look forward to hearing your comments. 

Cross posted at LawandTerrorism.com

I was recently interviewed regarding President Obama’s decision to close the Guantanamo Bay detention facility. The interview is 15 minutes long.

The interview can be heard here:
http://gsmcneal.blip.tv/file/2171326/

Or if the link doesn’t work for you the interview can be found here:

http://www.wpsu.org/radio/archive/takenote
Cross posted at LawandTerrorism.com

View my article, Creating a Domestic Terror Court, forthcoming in the Washburn Law Journal, 2009.

Abstract:

Cross-posted in National Security Advisors

Julian Mortenson wrote an insightful essay for Slate, providing details about the facts and law applicable to the Spanish investigation of Bush administration officials regarding allegations of torture at Guantanamo Bay.

He does a pretty good job of summarizing the state of the law, and the policy issues involved, a few quick hits:

First, “Nobody’s been charged with anything yet. The Spanish civil law system allows criminal complaints to be filed by individual civilians, screened by an investigating magistrate like Garzon, and then referred to a prosecutor’s office for preliminary assessment. After the prosecutors make their recommendation, an ultimate go/no-go decision on pursuing criminal charges follows. In the Guantanamo case, the process has only just cleared the first screening. That said, the referral makes a full investigation quite likely, and at least one official Spanish source has called eventual charges ‘highly probable.’”

Second, even if an arrest warrant were issued, it’s pretty unlikely that the U.S. would extradite Bush administration officials to Spain; although it may very well mean that those individuals may not be able to travel abroad.

Finally, a broader issue, according to Mortenson, is the fact that these individuals are facing criticism, not for their role in individually ordering specific acts of torture, but rather for creating a framework that would facilitate torture.  Mortenson importantly notes that while some of the legal advice may have ended up being wrong “in the eyes of the Supreme Court” it wasn’t insane.

An interesting essay, and well worth the read.

Cross Posted at LawandTerrorism.com

As Amos pointed out below, the January/February issue of the American Bar Association’s National Security Law Report, a publication of the Standing Committee on Law and National Security is now available on-line.

In this issue we feature three contributions which address the important topic of direct action against alleged terrorists and the legal framework which should govern in those circumstances.

First, David Luban (Georgetown University Law Center) and Amos N. Guiora (University of Utah, S.J. Quinney College of Law) debate the legal framework applicable during the recent conflict in Gaza. Professor Luban asks “Was the Gaza Campaign Legal?” while Professor Guiora suggests a new legal framework which he terms “Proportionality ‘Re-Configured’.”

Also, Sarah Miller (Harvard Law School), winner of The ABA Standing Committee on Law and National Security’s 2008 Student Writing Competition, pens an essay entitled “Covert Action and the War on Terror: Reconciling Secrecy and Public Legitimacy” in which she examines the current legal framework governing covert action and makes the case for transparent guidelines.

Check it out here.  If you’re interested in proposing your own article or debate for an upcoming issue, please contact me here.

If you would like to receive: a FREE hardcopy subscription to The National Security Law Report, plus email updates on workshops, seminars, speeches, events, and career postings in national security fill out this form here.

Cross posted at LawandTerrorism.com

I wanted to bring to your attention an exchange  between Prof David Luban (Georgetown University Law Center) and myself regarding “Operation Cast Lead” – Israel’s December 2008-January 2009 campaign in the Gaza Strip.

ABSTRACT
In this exchange published in the American Bar Association’s National Security Law Report, Prof. Luban argues that the Gaza campaign violated both the jus ad bellum and jus in bello proportionality principles and that the Hamas civil administration were not lawful targets under Israel’s own interpretation of the law of armed conflict. Prof. Guiora argues that terrorism changes the landscape of armed conflict and requires a reconfiguration of international law. Under this reconfiguration, an entire terrorist organization may properly be targeted. Prof. Luban’s article is entitled “Was the Gaza Campaign Legal;” Prof. Guiora’s is entitled “Proportionality ‘Re-Configured.’”

This exchange includes essays by Guiora and Luban, followed by Guiora’s response to Luban’s essay, and Luban’s response to Guiora’s.

View the debate here.

I’ve posted a draft version of my article Institutional Legitimacy and Counterterrorism Trials to SSRN and SelectedWorks.  The article is forthcoming in the Richmond Law Review and addresses the relationship between conformity and legitimacy in the institutional design process.  I specifically address how legitimacy is an important factor for counterterrorism trials, the military commissions and national security courts.  The article is aimed at national security law scholars and institutional design theorists.  Here is the abstract:

Much of the current debate in national security law scholarship focuses on institutional design issues related to the balancing of values such as legitimacy, effectiveness, fairness and efficiency.  A part of that debate centers around the legitimacy of tribunals established to try alleged terrorists. Critics of those tribunals assert they are an illegitimate form of justice and require reform or replacement by a new national security court. These scholars are principally engaged in a debate over institutional design. This article seeks to contribute to that debate, and also to the larger institutional design literature by providing a theoretical framework for understanding and evaluating legitimacy considerations in the institutional design process. While adding legitimacy as an analytical component may further complicate an already complex legal and policy debate, I contend Read the rest of this entry »

Since President Barack Obama issued an Executive Order in January requiring the closure of the Guantanamo Bay Detention Center within a year, the debate about what to do with the detainees has been marked by much heat but little light. All that is about to change with the publication of the Report of a distinguished group of experts and associated articles appearing in the Winter 2009 issue of the Case Western Reserve Journal of International Law.

The 57-page report and associated articles were the product of a meeting with two-dozen high-level government and international organization officials, key officers of Non Governmental Organizations, and leading academicians, which was convened at Case Western Reserve University School of Law by the International Committee of the Red Cross and CWRU’s Frederick K. Cox International Law Center a year ago.

According to the Report, shutting down Guantanamo is a start, but it will not be a comprehensive solution to the question of security detention (detention without charges of persons deemed a threat to national security) for the United States and other countries. It is likely that security detention will continue to be utilized, though to a lesser extent and in different venues, by the new administration. Meanwhile, following the lead of the Bush administration, countries around the world continue to experiment with various security detention regimes.

The Report and the associated articles indicate that international standards need to be clarified, adopted, and implemented to ensure that detainees are afforded prompt legal process and a meaningful opportunity to challenge the facts giving rise to their detention before a neutral arbiter. Moreover, extended security detention should be considered legitimate only where there is evidence that the detainee himself poses a serious security threat, an issue that must be subject to periodic review; and the longer the detention the higher must be the evidentiary burden of the State.

The Report and articles are available for worldwide viewing on the Case Western Reserve Journal of International Law’s website http://www.case.edu/orgs/jil/

On December 4, 2008, Salem Chalibi and I led a discussion (moderated by Elizabeth Wilmshurst) at Chatham House in London about the post-Dujail trials before the Iraqi High Tribunal.  There have been five trials in all, three of which have concluded.   After Saddam’s execution, the international media stopped covering the trials, so that few people are aware that without Saddam as a defendant, the subsequent trials were conducted much more efficiently, without the chaos and theatrics that marked the earlier proceedings.  Nor have there been any more assassinations of trial participants or allegations of government attempts to remove judges or otherwise influence the proceedings.  Meanwhile, the subsequent trials have established some important precedents, in particular regarding application of the crime of genocide.   For the detailed summary of the Chatham House discussion of the subsequent trials, click on:  http://www.chathamhouse.org.uk/publications/papers/view/-/id/692/ .