Volume 12, Issue 1 (Spring 2007)

This volume contains four articles on current international and comparative law issues. Available online at HeinOnline, Westlaw, or LexisNexis.

Chasing “Enemy Combatants” and Circumventing International Law: A License for Sanctioned Abuse Peter Jan Honigsberg. 12 UCLA J. Int’l L. & For. Aff. 1.

In 1944, in Korematsu v. United States, the U.S. Supreme Court made a major error in judgment. It ruled that the executive may forcibly remove over 110, 000 Japanese Americans from their homes and relocate them in American detention camps. In two recent Supreme Court cases, Hamdi v. Rumsfeld and Hamdan v. Rumsfeld, the Court made similar errors in judgment by accepting the administration’s term “enemy combatant. ” The Supreme Court’s errors were compounded when Congress passed the Military Commissions Act of 2006 in October 2006, statutorily defining the term enemy combatant for the first time. By acknowledging the term enemy combatant, the Court and Congress gave this and future administrations permission to deprive people of their recognized rights and protections. This article focuses on the specific evolution and chronology of the term enemy combatant and the administration ‘s inconsistent definitions, beginning with the introduction of the term in 2002. Enemy combatant did not and does not exist under international law. Enemy combatant was nothing more than a generic term until February 2002, when the administration imbued it with a new and particular meaning that was designed to circumvent the Geneva Conventions and international human rights laws. This article is a cautionary tale. Even if everything was righted today, we still must look back at how an executive deliberately disregarded existing law and treated enemy combatants with cruelty and inhumanity.

George Bush and the Abuse of History: The David Gray Adler Constitution and Presidential Power in Foreign Affairs. 12 UCLA J. Int’l L. & For. Aff. 75.

In his capacity as a wartime executive, President George W. Bush has adduced, in the name of national security and foreign affairs, broad authority under the banner of inherent presidential power and the Commander in Chief Clause. His claims to power include presidential authority to initiate preemptive war, terminate and suspend treaties, conduct warrantless electronic surveillance, establish military tribunals, and order acts of extraordinary rendition, all without congressional authorization. The Bush Administration has invoked the intentions of the Framers of the Constitution as support for these capacious claims of executive power. This essay examines these historical contentions and concludes that they find no support in the text, structure, and architecture of the Constitution. In fact, the president’s Cromwellian assertions of power are anathema to the Framers’ intentions and constitute an abuse of history.

FISA’s Fruits in Criminal Cases: An Opportunity for Improved Accountability. 12 UCLA J. Int’l L. & For. Aff. 145.

FISA discovery rules are highly restrictive and more protective of in- formation contained in, or derived from, FISA applications and orders than of classified information generally. By contrast to defendants confronted with evidence from court-authorized surveillance under the federal criminal code, defendants in cases where FISA- derived evidence is presented have, to date, been unable to obtain access to the underlying FISA applications and orders to challenge their sufficiency, accuracy, or veracity. While the primary focus of critical policy debate has been on the scope and standards applicable to the initiation of FISA surveillance, this article reviews the FISA discovery rules and presents a policy analysis of how updating those rules, in a manner that continues to protect national security interests, would allow more effective judicial review informed by adversarial scrutiny of the FISA operations in particular criminal cases and result in both more fair proceedings for individual defendants and more accountability for the FISA process generally.

How the Bush Administration’s Warrantless Surveillance Program Took the Constitution on an Illegal, Unnecessary, and Unrepentant Joyride. 12 UCLA J. Int’l L. & For. Aff. 163.

On August 5, the Protect America Act of 2007 amended the Foreign Intelligence Surveillance Act (FISA) to permit the federal government to conduct electronic surveillance that previously required court approval. This recent effort to temporarily ‘fix” FISA was carried out hurriedly and in a fog of secrecy, which made effective lawmaking impossible. Between now and when the new legislation “‘sunsets” 180 days after its enactment, FISA will be re-analyzed and debated as never before. This article was in press at the time the new legislation passed, and therefore does not attempt to critique the new law. Rather, the article directs its fire at the now-abandoned warrantless surveillance program launched by the Bush administration shortly after 9/11 and continued until January 2007. The first step in the current debate about FISA should be a much fuller disclosure of the nature of the secret warrantless surveillance program and of the Department of Justice analysis used to justify its claim to legality. This article dissects the assertions advanced to justify the program and advances the view that there needs to be a more vigorous debate about how to prevent expanded government surveillance from escaping oversight in the future. Given the illegality of the warrantless surveillance program and the tenacity with which the Administration has clung to its sweeping claim of Article H authority to violate FISA at will, Congress and the public must subject any proposed FISA amendments to an informed and skeptical analysis.

Available online at HeinOnline, Westlaw, or LexisNexis.

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