Due processes of governance: Terror, the rule of law, and the limits of institutional design: Special feature - Current challenges for governance

Governance

Volumn 22, Issue 3, 2009, Pages 353-368

  Mashaw, Jerry L ^a  

^a YALE UNIVERSITY   (United States)

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EID: 68149176619     PISSN: 09521895     EISSN: 14680491     Source Type: Journal    
DOI: 10.1111/j.1468-0491.2009.01443.x     Document Type: Article

References (28)

1. See, for example, Peter Margullies, True Believers at Law: National Security Agendas, the Regulation of Lawyers, and the Separation of Powers, 68 MD. L. REV. 1 (2008).
2. Jerry L. Mashaw, Bureaucratic Justice: Managing Social Security Disability Claims (1983).
3. The OLC advice to the White House remains unpublished. The position of the DOJ was summarized in a letter to certain members of the Senate and House Select Committees on Intelligence, dated December 22, 2005. It was signed by William E. Moschella, Assistant Attorney General, Office of Leg-islative Affairs in the U.S. Department of Justice.
4. The DOJ position was rebutted in a letter to the leadership of the House and Senate, the chairs and the ranking minority members of the House and Senate Judiciary Committees, and the chairs, vice-chair, and ranking minor-ity members of the House and Senate Permanent Select Committee on Intelligence, by a group of 15 constitutional law scholars and former gov-ernment officials dated January 9, 2006.
5. The most notorious of these opinions are John Yoo's memorandum of Sep-tember 25, 2001, entitled "The President's Constitutional Authority to Conduct Military Operations against Terrorists and Nations Supporting Them," and the August 1, 2002, memorandum for Alberto R. Gonzalez, Counsel to the President, the so-called "torture memorandum" signed by J.S. Bybee, Assistant Attorney General, Office of Legal Counsel, but written by John Yoo. Other memoranda relating to these matters have recently been posted on the DOJ Web site by the Obama administration.
6. See, for example, David Luban, Legal Ethics and Human Dignity (2007).
7. For a description, see Jack L. Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (2007).
8. The Foreign Intelligence Surveillance Act of 1978 is at 50 U.S.C. Ch. 36.
9. Foreign Intelligence Surveillance Amendments Act of 2008, Pub. L. No.110-261 (2008).
10. Information on the ACLU lawsuit is posted from time to time at (http:// www.aclu.org/safefree/nsaspying/faachallenge.html).
11. Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
12. -542 U.S. 466 (2004).
13. The Department of Defense's authority to regulate detention was based on an executive order issued by President George W. Bush entitled "Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terror," 66 Fed. Reg. 57,833 (November 13, 2001).
14. -355 F. Sup. 2d 443 (D.D.C. 2005).
15. Pub. L. 109-163, 119 Stat. 3136 (2006). This statute is essentially identical to the 2005 version at Pub. L. 109-148, 119 Stat. 2680 (2005).
16. -548 U.S. 557 (2006).
17. Pub. L. No.109-366, 120 Stat. 2600 (October 17, 2006).
18. -128 S. Ct. 2229 (2008).
19. On the operation of the Guantanamo Military Commission, see Kyndra Miller Rotunda, Honor Bound: Inside the Guantanamo Trials (2008);
20. David Luban, "Lawfare and Legal Ethics in Guantanamo," Stan. L. Rev. 60: 1981 (2008); and
21. Neil A. Lewis, "Two Prosecutors' Faulted Trials for Detainees," New York Times (August 1, 2005).
22. See, for example, Harold Hongju Koh, Protecting the Office of Legal Counsel from Itself, 15 CARDUZO L. REV. 513 (1993) (arguing for the prompt and full publication of all OLC opinions).
23. These guidelines were restated in a Memorandum for Attorneys in the Office of Legal Counsel, "Best Practices for OLC Opinions," issued May 16, 2005, by Steven G. Bradbury, Principal Deputy Assistant Attorney General.
24. Memorandum from Judge Advocate General, Air Force, to the General Counsel of the Secretary of the Air Force (February 5, 2003);
25. Memorandum from Judge Advocate General, Army, to the General Counsel of the Secretary of the Air Force (March 3, 2003);
26. and Memorandum form Judge Advocate General, Marine Corp., to the General Counsel of the Secretary of the Air Force (February 27, 2003).
27. Bruce Ackerman, Before the Next Attack (2006).
28. Diane Vaughan, The Challenger Launch Decision: Risky Technology, Culture and Deviance at NASA (1996).