Author Archive for jeffrey-kahn
Tempus Fugit
posted by Jeffrey Kahn
I enjoyed my time as a guest of Concurring Opinions, but my monthlong visit is over. Having never blogged before January, I had no idea how fast time would fly. So thanks to Danielle Citron and Daniel Solove for extending the invitation to me and for providing the easy-to-use tutorial and sound advice on how, what, and when to post. At the risk of melodrama, I’ll just sign off with a line from a favorite poem: “They are not long the days of wine and roses.” And while I would not recommend blogging-while-intoxicated, that verse sums up the brief but pleasurable visit that I thoroughly enjoyed. Thank you!
February 3, 2010 at 10:24 am
Posted in: Uncategorized
Print This Post
One Comment
A Debate about Connecting the Dots and the Christmas Plot
posted by Jeffrey Kahn
The last major news story of 2009 was the near-catastrophe on Christmas Day on Northwest Airlines Flight 253. Debate about the lessons learned from this failed attack continues, and will continue for some time.
This weekend, I was glad to be invited to join this debate as a participant in the new “Forum” feature over at the online Harvard National Security Law Journal. Paul Rosenzweig, a former deputy assistant secretary for policy at the Department of Homeland Security, started us off with a short, op-ed style piece: Connecting the Dots and the Christmas Plot. Two short responses followed yesterday and today. The first response is by Nathan Sales, now a law professor at the George Mason School of Law and also a former deputy assistant secretary for policy at DHS (accessible here). The second response is by me (accessible here).
January 27, 2010 at 9:49 am
Posted in: Privacy (National Security), Uncategorized
Print This Post
No Comments
Meet Mrs. Shipley
posted by Jeffrey Kahn
Is it sensible to analogize between the first decade of the War on Terror and the first decade of the Cold War? What lessons can we draw from the comparison? I am finishing a manuscript to be published by the University of Michigan Press with the working title International Travel, National Security, and the Constitution in War and Peace. In the book, I plan to defend this analogy, at least when it comes to the role travel restrictions have played in the national security policies of that time and our own.
Some officials and experts whom I’ve interviewed for this project thinks that this is a bad idea! They point to differences they perceive between terrorism, al Qaeda, and asymmetrical warfare on the one hand, and communism, the Soviet Union, and the Cold War balance of power on the other. But I also think that their reluctance to embrace the analogy is partly driven by the disconcerting feeling that it teaches the wrong lesson. Maybe we over-reacted then, they sometimes concede, but we are certainly not over-reacting now. Whatever shadows we boxed during the Red Scare, terrorism today is the real deal.
I’m keeping the analogy as a core feature of my book because I think that history has a lot to teach us. Back then, very thoughtful people were certain that communism was a clear and present danger that required extraordinary measures to defeat. The issue isn’t the objective merit of the threat assessment, but how we react to the threats we perceive. After the break, I’ll give you a taste of this analogy by way of introducing Mrs. Ruth Shipley, whom Time magazine described in 1951 as: “the most invulnerable, most unfirable, most feared and most admired career woman in Government.” Not only was she powerful, she was also one of a very small cohort of women to rise to the commanding heights of power in the Washington of her day. Here she is receiving the Distinguished Service Medal from John Foster Dulles:
January 25, 2010 at 10:53 am
Posted in: Uncategorized
Print This Post
2 Comments
3rd Annual National Security Law Faculty Workshop/IHL Training Event
posted by Jeffrey Kahn
Wouldn’t it be wonderful if there were an academic conference at which you could work through tough national security law issues by day, then hit the ice to train with the fastest, toughest, and most talented hockey players in the International Hockey League (IHL)?
Alas, there is no such event and I doubt there ever will be. But the very next best thing is a workshop that will take place at the University of Texas at Austin on April 1 and 2. In this context, IHL stands for International Humanitarian Law, of course, although I’m sure that Wayne Gretzky and his friends would be welcome guests.
This workshop is unlike any that you may have ever attended before. The traditional elements are all there: presentations of academic papers, discussants, serious exchanges between scholars interested in a friendly environment at which to try new ideas. But this workshop adds something new and exciting. For the third year in a row, instructors from the U.S. Army Judge Advocate General’s Legal Center and School and instructors from the International Committee of the Red Cross (ICRC) will provide their perspectives on international humanitarian law in training blocks interspersed between the academic papers.
The event is sponsored this year by the Strauss Center for International Security and Law and the ICRC. The co-hosts are Professor Bobby Chesney (UT Austin) and Professor Geoffrey Corn (South Texas College of Law). More details, including deadlines, are available here.
I attended the first two iterations of this workshop and came away each time thinking it was the best event I attended that year.
January 20, 2010 at 12:43 pm
Posted in: Uncategorized
Print This Post
No Comments
Run, Don’t Walk, To Your Nearest Bookstore …
posted by Jeffrey Kahn
Should the fate of Umar Farouk Abdulmutallab, who tried to blow up a plane over Detroit on Christmas Day, be decided by the United States military or by a federal court? If only an Article III court could try him, does that mean that only the FBI can question him, subject to all his constitutional protections (including his right to remain silent)? Or should he have been turned over to military interrogators immediately, as former federal judge and Attorney General Michael Mukasey suggested last week: “[h]olding Abdulmutallab for a time in military custody, regardless of where he is ultimately to be charged, would have been entirely lawful” (What Does the Detroit Bomber Know? Wall St. J. 1/16/10).
Resolving these questions isn’t easy, and certainly isn’t merely a policy choice. Several panels at the AALS Conference in New Orleans last week were devoted to national security issues. But more than once, I heard the leading experts in the country disagree on how to resolve this fundamental question: when must captured, suspected terrorists be tried in our criminal justice system and when should the laws of war, a.k.a. international humanitarian law (IHL) apply?
Needless to say, an understanding of the laws of war/IHL helps untangle this challenge. But how many of us had such a course in law school? A chance encounter with the subject in practice? Fortunately, the best new book you can read on the subject has just been published by Oxford University Press: The War on Terror and the Laws of War: A Military Perspective. (Full disclosure: I received a complimentary review copy.) You can peak inside the cover at the table of contents and read reviews at its Amazon.com page.
Here are three reasons why you should have this book on your shelf:
(1) The authors. Geoff Corn, Eric Jensen, James Schoettler, Dick Jackson, Victor Hansen and Michael Lewis have over a century of collective experience in the United States Army and United States Navy working on the very issues they analyze. They have been prosecutors and defense counsel, legal advisors and strike planners. They have also been combatants themselves. Rarely does one get the chance to read a careful, academic analysis written from the vantage point of scholars with such extensive experience with so many different facets of the subject of their study.
(2) The subjects. This book covers the gamut of critically important topics: the choice of law, targeting, detention, interrogation, war crimes liability, command responsibility, and the difficulty inherent in translating legal principles into on-the-ground practice. The perspective is future oriented but also offers insights on the legal decisions and policy choices of previous administrations. All that, under one cover, is hard to find.
(3) The presentation. Civilians can read this book! It is pleasantly free of jargon, thoroughly footnoted (with both references to primary sources and useful commentary on secondary debates), and judiciously edited. There is also a valuable thread of debate on several issues that can be traced through the authors’ contributions. They don’t always agree themselves on all points. This provides a further source of confidence in the thoughtful and lawyerly quality of their views, regardless of whether one agrees with them.
January 12, 2010 at 10:34 am
Posted in: Civil Rights, Constitutional Law, International & Comparative Law, Uncategorized
Print This Post
One Comment
A Very Brief History of the No-Fly List
posted by Jeffrey Kahn
In the aftermath of the near catastrophe aboard Northwest Flight 253 on Christmas Day, Washington is clamoring for more names, faster, on the No-Fly List. The Transportation Security Administration (TSA) checks each potential traveler’s name against this list of persons deemed too dangerous to fly. This recent scare seems to have flipped the conventional wisdom about the No-Fly List. Fairly or not, many used to perceive the list as too big and too prone to false positives (remember Cat Stevens?). The new conventional wisdom seems to be different: fill ‘er up.
Have you ever wondered where this No-Fly List came from and how it came to look the way it does? What does “dangerous” mean? Who decides? Media reports about the No-Fly List led me to write my article in the UCLA Law Review, which explored the constitutional questions underneath those policy ones. Here is a very brief history of the No-Fly List to give you some perspective on the White House report scheduled for release today. I’ll conclude with a few questions that will be covered in future posts.
January 7, 2010 at 1:29 pm
Posted in: Civil Rights, Constitutional Law, Uncategorized
Print This Post
4 Comments
The Month Ahead: War, Rights, Travel
posted by Jeffrey Kahn
Sometimes opportunity just comes knocking at your door. That’s sure how it felt when Danielle invited me to be a guest at Concurring Opinions this month. But I never imagined that, on my first day as a guest blogger, opportunity would come knocking again, this time with the blogging equivalent of a welcome basket.
That’s how it felt to read Michael Kinsley’s op-ed in the New York Times last night as I contemplated my first post (What’s Our Line? N.Y. Times, 1/5/10 at A21 NY edition). His eight-paragraph pitch to stay true to America’s first principles of justice (at least, as he sees them) seemed a custom-made opportunity to lay out my blogging agenda for the month. Kinsley’s essay was a great little read for me not because of his too broad conclusion (“We have nothing to be ashamed of, little to fear and much to be proud of in choosing to err on the side of treating captured foreign terrorists as we would treat any upstanding American who tried to blow up an airplane full of people.”), but mainly for the odd path he took to reach it. It was opportunity knocking again because he teed up several issues that interest me. (A mixed metaphor there? Nevermind, that train has sailed.)
Three issues jumped out in particular:
January 6, 2010 at 9:20 am
Posted in: Civil Rights, Constitutional Law, International & Comparative Law, Uncategorized
Print This Post
One Comment
