Keith Sealing (University of Louisville Brandeis School of Law)
In 1996, Congress, as part of the Antiterrorism and Effective Death Penalty Act of 1996, amended the list of noncommercial tort exceptions to sovereign immunity in the Foreign Sovereign Immunities Act ("FSIA") in response to a federal court's determination that it lacked subject matter jurisdiction over Libya and alleged Libyan terrorists in Smith v. Socialist People's Libyan Arab Jamahiriya, one of many cases resulting from the terrorist bombing of Pan Am Flight 103 over Lockerbie, Scotland. The ambiguously worded amendment appears to give federal courts both subject matter jurisdiction, which Congress clearly intended, and personal jurisdiction over the seven nations currently listed by the Executive Branch as "state sponsors of terrorism." The United States District Court for the Southern District of New York, the only court to address the amended FSIA, unconstitutionally interpreted it as according the court personal jurisdiction over Libya in the re-filed suit by the survivors, executors, administrators, and personal representatives of those killed over Lockerbie. This Article demonstrates that giving the court personal jurisdiction over a foreign sovereign simply because the Executive Branch has concluded that it is a "state sponsor of terrorism" or because an offshore terrorist act had some "effect" in the United States would violate the Due Process Clause of the Fifth Amendment absent the performance of traditional "minimum contacts" analysis under both the specific and general personal jurisdiction tests.
Yale Journal of International Law, forthcoming
Johannes Reich (Univ. of Basel - Law)
This paper assesses the legal consequences of the framework established pursuant to Resolution 1267 (1999) and subsequent decisions by the United Nations Security Council imposing sanctions on individuals not necessarily associated with states or state actors. This shift in focus piercing the veil of statehood raises pressing issues of both international and domestic constitutional law, human rights law, and administrative law (including the emerging field of international administrative law) as the current system lacks basic guarantees of fair trial and effective remedy. After analyzing the current framework, this paper critically reviews two decisions evaluating this new generation of "targeted" sanctions imposed by the United Nations, namely the case regarding Youssef Mustapha Nada v. State Secretariat for Economic Affairs of the Swiss Confederation (SECO) ["Nada-case"] by the Swiss Federal Supreme Court and - in an added note - the case regarding Yassin Abdullah Kadi et al. v. Council and Commission ["Kadi-decision"] by the European Court of Justice. Based on this analysis, this paper argues for installing an independent administrative mechanism to review both the listing and de-listing decisions made by the Security Council as only a mechanism at the level of the United Nations can, at the same time, preserve the crucial framework of international implementation of collective measures and also validate the core principles of the rule of law.
All the President's Spies: Private-Public Intelligence Partnerships in the War on Terror
California Law Review, Vol. 96, p. 901, 2008
Jon D. Michaels (University of California, Los Angeles - School of Law)
Commentators who have examined the Executive's post-September 11 practice of persuading corporations to enter into informal and, at times, unlawful intelligence-gathering partnerships have largely viewed the participating firms as co-conspirators, unwitting pawns, or coerced captives of the Executive-and understandably so. After all, participating corporations have been instrumental in enabling U.S. intelligence officials to conduct domestic surveillance and intelligence activities outside of the congressionally imposed framework of court orders and subpoenas, and also outside of the ambit of inter-branch oversight. Yet despite their track record as enablers, corporations are uniquely positioned to help rein in the currently unregulated practices.
This Article analyzes corporate-government agreements and provides the rationale and blueprint for shifting the principal locus of compliance with existing laws (and oversight obligations) from the intelligence officials to the corporations. The inquiry begins by laying out the Article's fundamental postulates: the intelligence agencies depend on private actors for information gathering; the Executive is institutionally predisposed to seek maximum discretion in conducting intelligence operations, both because of the overwhelming pressure to thwart acts of terrorism and because its officials are relatively immune from serious legal or political sanction for proceeding ultra vires; and, the Executive may choose to conduct intelligence policy through informal collaborations notwithstanding the legal, political, and economic harms these shadowy bargains may generate.
To mitigate these harms and enhance the legitimacy of domestic intelligence-gathering practices, the Article proposes to flip the private-public partnerships on their heads, converting the privatization schemes from the handmaidens of inscrutable intelligence policy into the guarantors of a new counterterrorism regime built on legality, integrity, and accountability. Whereas the Executive has shown itself willing (and able) to disregard legal requirements, the corporations lack the incentive and institutional capacity to act with similar abandon.
Thus, the Article recommends that Congress consider using these unlikely-but more pliable-corporate allies as gatekeepers, strengthening the currently incomplete and oft-bypassed legal framework for intelligence operations by obligating the firms to condition their intelligence-gathering cooperation on the Executive's compliance with legal formalities. Ultimately, the Article seeks not only to provide practical insights into the instant problems with unaccountable intelligence operations, but also to spark normative thinking both about how to manage a counterterrorism policy that is rapidly outgrowing the traditional boundaries of private versus public governance and, more generally, about how to involve private actors (and harness their self-interests) in efforts to boost compliance in other failing or failed public-law-enforcement paradigms.
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