Harvard Journal of Law & Public Policy

Tri-annual journal featuring scholarly review of law and issues of importance to students, educators, and practioners.

Articles from Vol. 25, No. 2, Spring

America's New War on Terror: The Case for Self-Defense under International Law
I. INTRODUCTION When representatives of fifty countries assembled in San Francisco in 1945 to draw up the United Nations Charter, modern threats of terrorism such as those posed by the Al Qaeda terrorist network were not yet known. The devastation...
An International Criminal Law Approach to Bioterrorism
I. INTRODUCTION Bioterrorism is a reality, and we are all threatened. (1) We need to make critical choices without delay. The recent anthrax attacks of Autumn 2001 have nullified any resort to relaxed deliberation. Because response measures, no...
Choices of Law, Choices of War
Is terrorism crime, or is it war? What conceptual framework will or should the United States use to conceptualize its fight against terror? The distinction between crime and war, embodied in international and domestic legal regimes, institutional-administrative...
Civil Liberties and Human Rights in the Aftermath of September 11
I. INTRODUCTION The focus of concern about the tension between liberty and security in dealing with terrorism has centered on the antiterrorism bills and the resulting USA PATRIOT Act. (1) But, the issues presented by the statute--involving privacy...
Fear and the Regulatory Model of Counterterrorism
In the aftermath of the terrorist attacks of September 11, two models of government response dominated public discussion. One model vests the criminal justice system with the authority to combat terrorism. The FBI and local authorities track down the...
Homeland: An Essay on Patriotism
In our schools of law, we should teach patriotism. What I am saying isn't simply that we should teach about patriotism. We should teach it. For patriotism, properly understood, is essential to the vitality of our democratic politics. It is through...
On Justice and War: Contradictions in the Proposed Military Tribunals
The autumn of our anguish has passed, and we are still confused about how to describe the use of military force in Afghanistan. We are tom between using the language of justice and the language of war. Is this an attack by private individuals, a case...
Re-Constructing Global Aviation in an Era of the Civil Aircraft as a Weapon of Destruction
The attacks of September 11 have had both an immediate and a long-term impact on global aviation. In the short term we have been overwhelmed by the loss of life, the systemic disruption of flying, and the international war on terrorism. But there is...
"Security Review" and the First Amendment
The C-17 cargo plane was 10 minutes from its drop zone When the rear door opened onto the night sky high above Afghanistan. Frigid air burst into the cabin, washing over food boxes that stood like soldiers at attention before an American...
Terrorism, Federalism, and Police Misconduct
The defining characteristic of American criminal law enforcement -- the characteristic that most distinguishes it from law enforcement elsewhere in the developed world -- is its localism. There are approximately 800,000 police officers in the United...
The Consequences of Enlisting Federal Grand Juries in the War on Terrorism: Assessing the USA Patriot Act's Changes to Grand Jury Secrecy
I. INTRODUCTION The antiterrorism bill passed by Congress in the wake of the September 11 attacks, called the USA PATRIOT Act, (1) contains a subtle but important change to federal grand jury procedure as part of an effort to bring about increased...
The Fog of Law: Self-Defense, Inherence, and Incoherence in Article 51 of the United Nations Charter
I. INTRODUCTION On a hot afternoon in July 2001, one of those rare, revealing scenes played out in Washington that seemed to convey, in one memorable moment, more than volumes of explanatory commentary and analysis. Testifying before the Senate...
The President's Constitutional Authority to Conduct Military Operations against Terrorist Organizations and the Nations That Harbor or Support Them
The terrorist attacks on the United States on September 11, 2001 raised important questions concerning the President's authority to take military action in response. Although Congress acted promptly to pass legislation authorizing the President to...
The War on Terrorism and the Modern Relevance of the Congressional Power to "Declare War"
Two days after terrorists attacked the World Trade Center and the Pentagon, a Harris poll conducted for Time/CNN reported that nearly two out of three Americans believed that the United States should "declare war." (1) A StrategyOne survey also conducted...
Unleashing the Rogue Elephant: September 11 and Letting the CIA Be the CIA
Media outlets have argued that the United States has had an "intelligence failure", decrying the intelligence community for failing to warn the American people of the September 11 attacks on the World Trade Center in New York and on the Pentagon in...
What to Do with Bin Laden and Al Qaeda Terrorists? A Qualified Defense of Military Commissions and United States Policy on Detainees at Guantanamo Bay Naval Base
I. INTRODUCTION The United States has successfully brought down the Taliban regime in Afghanistan. Together with increasing law-enforcement arrests and detentions of individuals alleged to be connected with the planning or execution of the attacks...
When Justice Goes to War: Prosecuting Terrorists before Military Commissions
I. INTRODUCTION The terrorists attacks of September 11, 2001 triggered an intense debate that continues to the present day: were they monstrous crimes--or acts of war? Should the U.S. response be shaped by a military or criminal justice paradigm?...
Who Should Deal with Foreign Terrorists on U.S. Soil? Socio-Legal Consequences of September 11 and the Ongoing Threat of Terrorist Attacks in America
I. INTRODUCTION When members of the Al Qaeda terrorist organization attacked the World Trade Center and the Pentagon with hijacked commercial aircraft on September 11, it was the first time since a young America fought pitched battles with British...
Why They Hate Us: The Role of Social Dynamics
I. THE THESIS My goal in this brief Essay is to cast some new light on a question that has been much discussed in the aftermath of the attacks of September 11. The question is simple: Why do they hate us? I suggest that a large part of the answer...