Washington College of Law
Home Archive Volume 61 Volume 61, Issue 5
Volume 61, Issue 5
War, Terror, and the Federal Courts, Ten Years After 9/11

From the 2012 Annual Meeting of the Association of American Law Schools | 61 Am. U. L. Rev. 1253 (2012)

This event, held on January 7, 2012, was a part of the Association of American Law Schools’ Section on Federal Courts program at the 2012 AALS Annual Meeting in Washington, D.C.

This transcript has been edited.

Click here to view this Conference Transcript.

The New National Security Canon

By Stephen I. Vladeck | 61 Am. U. L. Rev. 1295 (2012)

Why have victims of post-September 11 governmental misconduct met with virtually no success thus far in pursuing damages claims arising out of the government’s alleged abuses?  One explanation is that these cases are nothing more than one piece of a larger puzzle in which fewer and fewer civil plaintiffs have been able to recover in any suit alleging official misconduct.  After all, it is a familiar trope that the Supreme Court has shown increasing skepticism in recent years toward civil plaintiffs in damages suits against government officers.  Complicating matters, because reasonable minds continue to disagree about the legality of the surveillance, detention, and treatment of terrorism suspects (and a host of other controversial measures) since September 11, different perspectives on the underlying legal questions will necessarily color our view of whether the absence of relief in these cases is a new—or troubling—development.

Prefering Order to Justice

By Laura Rovner & Jeanne Theoharis | 61 Am. U. L. Rev. 1331 (2012)

In the decade since 9/11, much has been written about the “War on Terror” and the lack of justice for people detained at Guantánamo or subjected to rendition and torture in CIA black sites. A central focus of the critique is the unreviewability of Executive branch action toward those detained and tried in military commissions. In those critiques, the federal courts are regularly celebrated for their due process and other rights protections. Yet in the past ten years, there has been little scrutiny of the hundreds of terrorism cases tried in the Article III courts and the state of the rights of people accused of terrrorism-related offenses in the federal system. The deference to assertions of national security that degraded protections for detainees at Guantánamo has similarly degraded the protections for Muslims facing terrorism charges in the federal courts.

Brass Rings and Red-Headed Stepchildren: Protecting Active Criminal Informants

By Michael L. Rich | 61 Am. U. L. Rev. 1433 (2012)

Informants are valued law enforcement tools, and active criminal informants—criminals who maintain their illicit connections and feed evidence to the police in exchange for leniency—are the most prized of all. Yet society does little to protect active criminal informants from the substantial risks inherent in their recruitment and cooperation. As I have explored elsewhere, society’s apathy toward these informants is a result of distaste with their disloyalty and a concern that protecting them will undermine law enforcement effectiveness. This Article takes a different tack, however, building on existing scholarship on vulnerability and paternalism to argue that society has a duty to protect some vulnerable informant interests. In particular, I assess informant vulnerabilities against accepted societal norms to determine which informants deserve greatest protection and balance informant autonomy interests against informant interests in avoiding harm.

COMMENT: No Toy For You! The Healthy Food Incentives Ordinance: Paternalism or Consumer Protection?

By Alexis M. Etow | 61 Am. U. L. Rev. 1503 (2012)

The newest approach to discouraging children’s unhealthy eating habits, amidst increasing rates of childhood obesity and other diet-related diseases, seeks to ban something that is not even edible. In 2010, San Francisco enacted the Healthy Food Incentives Ordinance, which prohibits toys in kids’ meals if the meals do not meet certain nutritional requirements.

COMMENT: A Vague Law in a Smartphone World: Limiting the Scope of Unauthorized Access under the Computer Fraud and Abuse Act

By Andrew Hernacki | 61 Am. U. L. Rev. 1543 (2012)

The Computer Fraud and Abuse Act (CFAA) broadly criminalizes unauthorized access to computers and digital information, but how far should these federal prohibitions reach into the mobile data space? As smartphones and mobile applications continually redefine the digital landscape, attempts to apply the decades-old anti-hacking statute in this new territory have created potentially disturbing precedent.

NOTE: Shields of War: al-Shimari v. CACI International and al-Quraishi v. L-3 Services Present an Opportunity to Define the Defense Available to Military Contracts Accused of Torture

By Kathryn R. Johnson | 61 Am. U. L. Rev. 1417 (2012)

The United States’ military actions in Iraq and Afghanistan have been heavily dependent on civilian contractors.  The reliance on personnel not under the direct control and management of the United States military and the presence of contractors in foreign battle zones raise significant questions about how military contractors can be held responsible for their actions abroad.  Abuses perpetrated by military contractors abroad are exemplified by several contractors’ participation—or complicity—in the torture and abuse of Iraqi detainees at the Abu Ghraib prison and other locations in Iraq.