Volume 11 / Number 4 / Winter 2007


Crimes, War Crimes and the War on Terror


John R. Kroger & John T. Parry

11 Lewis & Clark L. Rev. 835 (2007)

The Role of Federal Criminal Prosecutions in the War on Terrorism

Kelly Moore

11 Lewis & Clark L. Rev. 837 (2007)

In this Article, the author, who worked as an Assistant United States Attorney for eleven years, chronicles the use of criminal prosecutions before and after the attacks of September 11, 2001. The author argues that a shift from reactionary prosecutions and intelligence gathering before 9/11 to proactive prosecutions immediately after 9/11 greatly increased access to human intelligence and helped eliminate potential terrorist threats, effectively aiding the war on terrorism. However, in the last few years, there has again been a shift away from these proactive prosecutions back to the intelligence gathering mindset, which is inferior to the results obtained through traditional investigative techniques and criminal prosecutions.

Federal Prosecution of Terrorism-Related Offenses:
Conviction and Sentencing Data in Light of the
“Soft-Sentence” and “Data-Reliability” Critiques

Robert M. Chesney

11 Lewis & Clark L. Rev. 851 (2007)

This Article examines two critiques associated with post-9/11 criminal prosecutions in terrorism-related cases. The “data-reliability” critique attacks the reliability of the statistics reported by the Justice Department in connection with such cases, while the “soft-sentence” critique suggests that claims of success in such cases might be overstated in light of the relatively short sentences they produce.

The author concludes that the data-reliability critique largely reflects disagreement regarding the types of cases that ought to be coded as terrorism-related. This dispute came to a head in the spring of 2007 in connection with a report issued by the Justice Department’s Inspector General, prompting the Executive Office for United States Attorneys (EOUSA) to revise its case code definitions. Whether the revised codes will suffice to resolve the data-reliability critique remains to be seen.

The soft-sentence critique in turn reflects the definitional dispute underlying the data-reliability critique; the Justice Department’s inclusion of preventive charging cases (and other such cases not involving overt allegations of involvement with terrorism) in its terrorism-related statistical categories inevitably leads to relatively brief aggregate sentences. It does not follow, however, that the Justice Department has obtained similarly brief sentences in cases that do involve allegations of conduct relating in some fashion to terrorism. Rather than examining disposition and sentencing data solely based on the controversial EOUSA case categories, I advocate reliance also on data developed on a per-offense basis. I conclude the Article with an example of such a study, focused on two statutes: 18 U.S.C. § 2339B (prohibiting the provision of material support to designated foreign terrorist organizations) and 50 U.S.C. § 1705 (criminalizing transactions in violation of sanction orders issued under the International Emergency Economic Powers Act (IEEPA)). The study includes all prosecutions under both statutes between September 2001 and July 2007 (for § 1705 it includes only those prosecutions arising out of terrorism-related IEEPA orders), and finds that they yield sentences considerably more substantial than the low numbers emphasized in the soft-sentence critique.

Enemies of the State: Rational Classification in the War on Terrorism

Tung Yin

11 Lewis & Clark L. Rev. 903 (2007)

In this Article, Professor Yin proposes a new solution to the classification of suspected terrorists in the War on Terrorism—that national identity should be the determining factor in deciding whether combatants are criminally prosecuted or detained by the military. Currently, the Bush Administration does not seem to be following any discernible rubric in classifying enemy combatants. Professor Yin proves this point by examining disparate classifications arrived at by the Executive Branch since the War on Terrorism began. He argues against such modalities of classification as citizenship, geography, and utility as producing both unreasonable and unsatisfactory results. Finally, Professor Yin lays out guidelines in which his national identity solution can be practically implemented, arguing that the Executive Branch can most effectually institute his proposal.

Combatant Status Review Tribunals:
An Ordeal Through the Eyes of One “Enemy Combatant”

Thomas R. Johnson

11 Lewis & Clark L. Rev. 943 (2007)

Tom Johnson has experienced firsthand the unnerving frustration of representing a client who has been denied fair adjudicative process. As counsel for a former Guantanamo Bay detainee, the author was exposed to the short-comings of the Combatant Status Review Tribunals (CSRTs) endorsed by Congress to provide administrative review of the status of the detainees at Guantanamo Bay. In his critique of the CSRT process, Johnson tells the story of how his client, Ihlkham Battayev, detainee number 84, was captured, kidnapped, and ultimately detained by the United States without ever being provided full and fair process to determine his status as an enemy combatant. This Article details Ihlkham’s inability to comprehend how a “country of justice” could fairly and accurately determine the guilt or innocence of the detainees through a process that he considered “nothing but theater.” The critique emphasizes the lack of procedural protections afforded the detainees at Guantanamo Bay, specifically, the inability of the detainees to understand the CSRT process, to rebut the government’s presumption of enemy combatant status, and to offer evidence of innocence. The author proposes that a new system be implemented to protect the rights of detainees. This new system would implement the necessary procedures to offer the detainees a fair process, including narrowing the definition of “enemy combatant,” providing the detainees with access to counsel, granting judges the authority to decide the fate of the detainees, and providing for greater transparency in the process as a whole.

Enemy Aliens, Enemy Property, and Access to the Courts

Stephen I. Vladeck

11 Lewis & Clark L. Rev. 963 (2007)

Critics of the assertive role the federal judiciary has thus far played in the “war on terrorism” argue that it is well established that the courts have never previously been open during “wartime” to individuals identified by the Executive Branch as “enemies.” Based upon a largely unexplored body of case law, this Article suggests that such a contention is a historical myth. To the contrary, U.S. courts have a long and rich history of hearing wartime cases where the government alleged that a private party was an “enemy,” and the private party maintained that he was not. The common law “enemy alien disability rule,” to whatever extent it remains viable, simply has no application to cases where there is a colorable question as to whether the relevant individual is, in fact, an enemy. To be sure, the courts have shown broad deference to the government in these cases, as a result of which the government has usually prevailed. But such outcomes have come only after thorough and searching analysis of the underlying jurisdictional fact—of whether the individual is, in fact, an “enemy” under the relevant definition.

Hamdan, Terror, War

Allen S. Weiner

11 Lewis & Clark L. Rev. 997 (2007)

What makes a “war”? Professor Weiner argues that the self-styled “war on terror” launched by the United States against al-Qaeda and other terrorist entities mischaracterizes the nature of the conflict. This mischaracterization is not merely a matter of semantics, but has been used to vest the Executive Branch with substantial legal powers only available in wartime. Although Professor Weiner acknowledges certain important similarities between the “war on terror” and conventional forms of armed conflict, he submits that the Executive Branch has chosen not to accept wartime’s legal duties even as it claims wartime rights in the fight against terrorism. Professor Weiner criticizes the Supreme Court’s decision in Hamdan v. Rumsfeld that Common Article 3 of the Geneva Conventions applies to the Guantanamo detainees. Although this ruling extended some limited protections to the Guantanamo detainees, it effectively endorses the Executive Branch’s assertion of sweeping wartime powers in the fight against terrorism. Finally, Professor Weiner argues that the potentially unbounded character of the conflict against terrorism creates powerful reasons for the Judiciary to apply traditional principles of checks and balances and to limit Executive Branch powers in this new “war on terror.”

Why States Need an International Law for Information Operations

Duncan B. Hollis

11 Lewis & Clark L. Rev. 1023 (2007)

Just as states have spent the last several years wrestling with the appropriate legal response to terror, they must now undertake a similar effort to deal with the burgeoning use of “information operations” (IO). IO involves the use of information technology, such as computer network attacks or psychological operations, to influence, disrupt, corrupt, usurp, or defend information systems and the infrastructure they support. More than thirty states have developed IO capacities. But IO is also undoubtedly attractive to non-state actors like al-Qaeda, since the technology is mostly inexpensive, easy-to-use, and capable of deployment from virtually anywhere.

This Article assesses the ways in which international law—specifically the rules regulating the use of force and the law of war—currently applies to IO. Conventional wisdom suggests existing rules can cover IO by analogy. The conventional wisdom is only half-right. This Article explains why the existing rules govern IO, but challenges the unstated assumption that they do so appropriately. Translating existing rules into the IO context produces extensive uncertainty, risking unintentional escalations of conflict where forces have differing interpretations of what is permissible. Alternatively, such uncertainty may discourage the use of IO even if it might produce less harm than traditional means of warfare. Beyond uncertainty, the existing legal framework is insufficient and overly complex. Existing rules have little to say about the non-state actors that will be at the center of future conflicts. And where the laws of war do not apply—even by analogy—an overwhelmingly complex set of other international and foreign laws purport to govern IO.

To remedy such deficiencies, this Article proposes a new legal framework—an international law for information operations (ILIO). By adopting an ILIO, states could alleviate the uncertainty and complexity of the status quo, reduce transaction costs for states fighting global terror, and lessen the collateral costs of armed conflict itself. This Article concludes with a review of some of the regulatory design questions facing an ILIO, but does not offer any specific rules. Rather, its ultimate aim is to convince states and scholars about the need for an ILIO in the first place.

Al-Qaeda and the Law of War

Mark Weisburd

11 Lewis & Clark L. Rev. 1063 (2007)

Nearly since September 11 itself, the legal community has been debating the legal status of al-Qaeda members—criminals versus combatants of war. Though there are many lenses through which one can view this issue, this Article examines the question in terms of individual rights of al-Qaeda members under international law. The author puts the issue in context by first discussing the significance of the label—the distinction in treatment between criminal suspects and prisoners of war. Then, the Article analyzes al-Qaeda and its operations to determine where its members might fall on the continuum from criminal to combatant. Ultimately, the Article suggests that, at least when considering their personal rights under international law, al-Qaeda members should be considered combatants of war, rather than criminals. However, the nature of al-Qaeda makes it difficult to apply international humanitarian law to the group, with interesting implications for the future of this area of law.

Surveillance and Transparency

Valerie Caproni

11 Lewis & Clark L. Rev. 1087 (2007)

In this Article, the General Counsel for the Federal Bureau of Investigation provides a practical perspective on issues of national security surveillance and the use of national security letters. The author begins by setting forth a primer on national security surveillance. Next, she contrasts the procedural standards and execution methods of FISA surveillance with Title III surveillance. The author then discusses the changes in the FBI’s national security electronic surveillance practices since 9/11.

In the final part of the Article, the author describes the FBI’s use of national security letters (NSLs), a somewhat controversial non-surveillance national security tool, and addresses recent critiques of the Bureau’s use of NSLs. While acknowledging that more work can be done, the author notes how the FBI has already improved its use of NSLs through increased training and education of its agents. The author concludes the article by stressing the importance of NSLs, and cautioning that future restrictions on the FBI’s capacity to obtain documents through NSLs could significantly harm the Bureau’s ability to fulfill its mission of keeping the nation safe.

Electronic Surveillance of Terrorism:
The Intelligence/Law Enforcement Dilemma - A History

William Funk

11 Lewis & Clark L. Rev. 1099 (2007)

The Foreign Intelligence Surveillance Act (FISA) has been much in the news. Because the requirements for a judicial warrant under FISA do not require the traditional showings for electronic surveillance for law enforcement purposes, one of the issues relating to FISA is the extent to which surveillance under that Act may be undertaken for the purposes of criminal law enforcement, rather than for obtaining foreign counterintelligence or counterterrorism information. This issue became particularly salient after 9/11 when at the administration’s urging Congress passed an amendment to FISA in the USA PATRIOT Act that eliminated the previous requirement that “the purpose” of the surveillance was to obtain foreign intelligence information and replaced it with the requirement that “a significant purpose” be to obtain such information.

This Article traces the history of FISA’s adoption and subsequent practice to show that the original intent of FISA, recognized by the government and confirmed by the courts, was that the primary purpose for the surveillance had to be the gathering of foreign intelligence, including intelligence concerning international terrorism, rather than obtaining evidence for use in criminal trials. The Article then describes how FISA was later misconstrued by employees in the Justice Department, and later by the Foreign Intelligence Surveillance Court, to erect a so-called wall between intelligence and law enforcement officers that was not only not required by FISA but contrary to its purpose and history. Some have attributed much of the blame for the 9/11 intelligence failure to the existence of this “wall,” creating a perceived need to amend FISA to eliminate the wall through the amendment of the “purpose” requirement in the USA PATRIOT Act. This Article demonstrates how that amendment was unnecessary and suggests that the amendment raises other, constitutional issues with respect to FISA.

Rays of Sunlight in a Shadow “War”:
FOIA, The Abuses of Anti-Terrorism, and the Strategy of Transparency

Seth F. Kreimer

11 Lewis & Clark L. Rev. 1141 (2007)

In the wake of the September 11 attacks, the “Global War on Terror” has marginalized the rule of law. From the dragnet detentions in the aftermath of the initial attacks, to novel and secretive surveillance authority under the Patriot Act, to the incarceration and torture of “enemy combatants,” the administration’s “war” has sought to establish zones of maneuver free of both legal constraint and of political oversight. In the first half decade of these efforts, the tripartite constitutional structure which is said to guard against executive usurpation remained largely quiescent. Opponents both inside and outside of the government turned instead to subconstitutional structures to expose this self-avowed “dark side,” and to lay the foundation for a return to the rule of law. This Article examines four case studies of this strategy of transparency. At the center of each account lies the Freedom of Information Act (FOIA). The studies highlight, however, the crucial roles played by a broader complex of structures of transparency that have come to constitute the framework of national governance during the last generation, the importance of the integrity of the civil servants administering those structures, and the fulcrum of sustained advocacy.