Great Harvard National Security Journal Issue

By Jack Goldsmith
Monday, February 9, 2015, 9:03 AM

The Harvard National Security Journal just published an unusually good issue that will be of interest to many Lawfare readers.

The piece I have read most carefully is Intelligence Legalism and the National Security Agency’s Civil Liberties Gap by Margo Schlanger of the University of Michigan Law School.  She argues that the post-Church hyper-legalization (my term, not hers) of intelligence has resulted in systematic under-emphasis on civil liberties concerns, and proposes correctives.

Major Jesse Greene of the Army JAG Corps assesses the legal regime for possible military quarantines in the U.S. and, building on (and critiquing) the Standing Rules for the Use of Force, he offers his own draft rules for quarantine enforcement.

Jeffrey Brand, former dean of the University of San Francisco School of Law, highlights five lessons learned from FISA’s legislative history, and seeks out the “elusive balance” between security and liberty envisioned by the Framers of the Constitution in an effort to restore the necessary separation of powers that he sees as lacking in the modern U.S. surveillance infrastructure.

Major Ronald T. P. Alcala of the U.S. Army recounts how Coalition forces in the Iraq war unnecessarily ran roughshod over the ancient city of Babylon, and argues that to avoid a similar situation in the future, the U.S. military must reinvigorate its institutional commitment to safeguarding and protecting cultural property.

As debates over the closure of Guantanamo Bay continue, Adam Pearlman, DoD Associate Deputy General Counsel, probes the Executive Branch’s failure to persuade the Supreme Court that it could hold detainees indefinitely at GTMO without hearings in civilian courts.  Pearlman examines the legal precedents on which the Bush Administration initially relied when it decided to hold detainees at GTMO and then discusses some of the consequences that habeas litigation has had for U.S. military tactics on the battlefield.