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Guidance for maintaining national security without abandoning the rule of law and our democratic values. In an age of global terrorism, can the pursuit of security be reconciled with liberal democratic values and legal principles? During its “global war on terrorism,” the Bush administration argued that the United States was in a new kind of conflict, one in which peacetime domestic law was irrelevant and international law inapplicable. From 2001 to 2009, the United States thus waged war on terrorism in a “no-law zone.” In Laws, Outlaws, and Terrorists, Gabriella Blum and Philip Heymann reject the argument that traditional American values embodied in domestic and international law can be ignored in any sustainable effort to keep the United States safe from terrorism. They demonstrate that the costs are great and the benefits slight from separating security and the rule of law. They call for reasoned judgment instead of a wholesale abandonment of American values. They also argue that being open to negotiations and seeking to win the moral support of the communities from which the terrorists emerge are noncoercive strategies that must be included in any future efforts to reduce terrorism.
This is a chapter from our forthcoming book, 'Laws, Outlaws, and Terrorists: Lessons from the War on Terrorism', (MIT Press, September 2010). This chapter addresses the legal, ethical, and strategic aspects of targeted killings as a counterterrorism measure, drawing on the American and Israeli experience. We argue that since terrorism is neither a traditional war nor a traditional crime, its non-traditional nature must affect how, where, and when we employ targeted killings. Specifically, we argue that whether one begins with a law enforcement model or a war model in mind, the ultimate contours of justifiable targeted killings are very similar under either paradigm.
A former Deputy Attorney General of the United States argues that we must preserve our civil liberties and democratic values while fighting terrorism. On September 11, 2001, the United States began to consider the terrorist threat in a new light. Terrorism was no longer something that happened in other countries on other continents but became a pressing domestic concern for the US government and American citizens. The nation suddenly faced a protracted struggle. In Terrorism, Freedom, and Security, Philip Heymann continues the discussion of responses to terrorism that he began in his widely read Terrorism and America. He argues that diplomacy, intelligence, and international law should play a larger role than military action in our counterterrorism policy; instead of waging "war" against terrorism, the United States needs a broader range of policies. Heymann believes that many of the policies adopted since September 11--including trials before military tribunals, secret detentions, and the subcontracting of interrogation to countries where torture is routine--are at odds with American political and legal traditions and create disturbing precedents. Americans should not be expected to accept apparently indefinite infringements on civil liberties and the abandonment of such constitutional principles as separation of powers and the rule of law. Heymann believes that the United States can guard against the continuing threat of terrorism while keeping its traditional democratic values in place.
This new Understanding treatise provides a compact review of the three main approaches to combating terrorism: criminal proceedings, intelligence and prevention, and military action. The three modes of responses are not the same; each has benefits and limitations, and it will be difficult to find the proper balance among them. Understanding the Law of Terrorism contributes to the search for balance by providing the tools for analysis and application of each of the three modes of response. * With regard to law enforcement, it covers the requirements of conspiracy law, the principal statutes dealing with terrorism, designation of foreign terrorist organizations, and the crime of material support of terrorist activity or organizations. It also goes into the international law dealing with crimes against humanity which could be a source of enforcement principles for terrorism. * On the intelligence front, the book deals with the structure of the Intelligence Community, the operation of the Foreign Intelligence Surveillance Act (FISA), and the mechanics of the Classified Information Procedure Act (CIPA). * With regard to military response, the book summarizes the Law of Armed Conflict (LOAC), delves into military detentions, extraordinary renditions, and harsh interrogation or torture. Finally, the book concludes with a look at the law of emergency situations and the degree to which ordinary processes of law may be suspended in times of crisis, looking at both U.S. and foreign cases. Throughout the book, there are references to the law of other nations and international law. There is also an Appendix with the principal U.S. statutes, the major international conventions and treaties, and the relevant U.S. executive orders.
There are 2 fed. material support statutes have been at the heart of the Justice Dept¿s. terrorist prosecution efforts. One provision outlaws providing material support for the commission of certain designated offenses that might be committed by terrorists. The other outlaws providing material support to certain terrorist org. They share a common definition of the term ¿material support,¿ some aspects of which have come under constitutional attack. Contents of this report: (1) Introduction; (2) Background; (3) Support of Designated Terrorist Org.: Attempt, Conspiracy, Aiding and Abetting; Material Support; Other Constitutional Challenges; Terrorist Org.; Consequences of Charge or Conviction; Extraterritorial Jurisdiction; Civil Actions; (4) Support of Terrorism.
The wars against terror have begun, but it will take some time before the nature and composition of these wars is widely understood. The objective of these wars is not the conquest of territory, or the silencing of any particular ideology, but rather to secure the necessary environment for states to operate according to principles of consent and make it impossible for our enemies to impose or induce states of terror. Terror and Consent argues that, like so many states and civilizations in the past that suffered defeat, we are fighting the last war, with weapons and concepts that were useful to us then but have now been superseded. Philip Bobbitt argues that we need to reforge links that previous societies have made between law and strategy; to realize how the evolution of modern states has now produced a globally networked terrorism that will change as fast as we can identify it; to combine humanitarian interests with strategies of intervention; and, above all, to rethink what 'victory' in such a war, if it is a war, might look like - no occupied capitals, no treaties, no victory parades, but the preservation, protection and defence of states of consent. This is one of the most challenging and wide-ranging books of any kind about our modern world.
Since September 11, 2001, much has been said about the difficult balancing act between freedom and security, but few have made specific proposals for how to strike that balance. As the scandals over the abuse of Iraqi prisoners at Abu Ghraib and the "torture memos" written by legal officials in the Bush administration show, without clear rules in place, things can very easily go very wrong. With this challenge in mind, Philip Heymann and Juliette Kayyem, directors of Harvard's Long-Term Legal Strategy Project for Preserving Security and Democratic Freedoms in the War on Terrorism, take a detailed look at how to handle these competing concerns. Taking into account both the national security viewpoint and the democratic freedoms viewpoint, Heymann and Kayyem consulted experts from across the political spectrum—including Rand Beers, Robert McNamara, and Michael Chertoff (since named Secretary of Homeland Security)—about the thorniest and most profound legal challenges of this new era. Heymann and Kayyem offer specific recommendations for dealing with such questions as whether assassination is ever acceptable, when coercion can be used in interrogation, and when detention is allowable. They emphasize that drawing clear rules to guide government conduct protects the innocent from unreasonable government intrusion and prevents government agents from being made scapegoats later if things go wrong. Their recommendations will be of great interest to legal scholars, legislators, policy professionals, and concerned citizens.
The terrifying new role of technology in a world at war