Criminology Legal Perspectives on the US War on Terrorism
by
Jonathan Hafetz
  • LAST REVIEWED: 22 November 2019
  • LAST MODIFIED: 28 September 2016
  • DOI: 10.1093/obo/9780195396607-0207

Introduction

The US War on Terrorism describes important aspects of the United States’ approach to Al Qaeda and other terrorist groups after the attacks of 11 September 2001. President Bush first used the term on 20 September 2001. Over time, the War on Terrorism has become an umbrella term for a range of legal, military, and policy decisions. The War on Terrorism is partly rhetorical, signaling an intensified focus, much like the “war on crime” or “war on drugs” did in the past. But the War on Terrorism also has legal significance. It indicates a decision by the United States to treat the struggle against Al Qaeda and other terrorist groups partly as an armed conflict, rather than exclusively as a matter of criminal law enforcement. This conflict, moreover, was deemed to be global in scope. The War on Terrorism was initially associated with sweeping assertions of presidential power rooted in the president’s inherent authority under Article I of the Constitution. The War on Terrorism includes a number of facets, including the indefinite detention of suspected terrorists; the use of military commissions to try terrorism suspects for war crimes; torture and other cruel, inhuman, and degrading treatment; the targeted killing of terrorism suspects through drone strikes; and the expansion of government surveillance programs, including those affecting US citizens. Despite modifications over time through congressional action, judicial decisions, and changes in executive branch policy, important features of the War on Terrorism remain today.

General Overviews

Many books and articles address the War on Terrorism, although much of the relevant literature focuses on individual sub-topics. Goldsmith 2007 offers an inside account of the War on Terrorism during the Bush administration, while Klaidman 2012 and Savage 2015 provide an overview of the formulation of national security policy during the Obama administration. Murphy discusses the 2003 US invasion of Iraq, which President Bush linked to the War on Terrorism. Cole 2003 and Fiss 2015 describe how the War on Terrorism has impacted constitutional liberties. Cole, for example, compares responses by the Bush administration after 9/11 to prior overreactions by the US government during times of insecurity. Ackerman 2004 and Gross 2003 situate the War on Terrorism within broader theories of emergency powers. Huq 2009 questions the notion of national security exceptionalism and link judicial responses during the War on Terrorism to broader trends in public law. Wittes 2008 focuses on the importance of greater congressional involvement and the need to develop a new law of counterterrorism.

  • Ackerman, Bruce. 2004. The emergency constitution. Yale Law Journal 113:1029–1091.

    DOI: 10.2307/4135710Save Citation »Export Citation »

    Explains why the significant and long-term nature of the threat posed by terrorism demands that liberal democracies, such as the United States, develop a new paradigm of emergency constitutionalism that recalibrates the balance between liberty and security.

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  • Cole, David. 2003. Enemy aliens: Double standards and constitutional freedoms in the war on terrorism. New York: New Press.

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    Describes the problems associated with United States’ use of a double standard that curtails the rights of foreign nationals without requiring citizens to make the same sacrifices.

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  • Fiss, Owen. 2015. A war like no other: The Constitution in a time of terror. New York: New Press.

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    Examines the erosion of fundamental constitutional liberties in the name of protecting national security and the failure of courts to hold the government accountable.

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  • Goldsmith, Jack. 2007. The terror presidency: Law and judgment inside the Bush administration. New York: Norton.

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    An inside account of how the fear of another terrorist attack shaped the formulation of national security policy during the Bush administration.

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  • Gross, Oren. 2003. Chaos and rules: Should responses to violent crises always be constitutional? Yale Law Journal 112:1011–1134.

    DOI: 10.2307/3657515Save Citation »Export Citation »

    Explores how the War on Terrorism reflects a familiar pattern in which liberal democracies curtail individual rights in times of emergency and questions the effort to accommodate these practices within a constitutional rubric rather than acknowledging the need to circumvent the legal order.

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  • Huq, Aziz Z. 2009. Against national security exceptionalism. Supreme Court Review 2009.1: 225–273.

    DOI: 10.1086/653649Save Citation »Export Citation »

    Challenges the prevailing view that judicial responses to national security measures differ significantly from broader jurisprudential trends.

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  • Klaidman, Daniel. 2012. Kill or capture: The war on terror and the soul of the Obama presidency. New York: Houghton Mifflin Harcourt.

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    Describes the evolution of the Obama administration’s counterterrorism policies and the internal debates within the administration on key national security issues.

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  • Murphy, Sean D. 2005. Assessing the legality of invading Iraq. Georgetown Law Journal 92:173–257.

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    Critiques the legal theory provided by the United States to justify the invasion of Iraq and its lack of support under international law.

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  • Savage, Charlie. 2015. The power wars: Inside Obama’s post-9/11 presidency. New York: Little, Brown.

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    Provides a detailed account of the formulation of national security policy during the Obama administration and the degree to which Obama achieved promised changes in this area.

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  • Wittes, Benjamin. 2008. Law and the long war: The future of justice in the age of terror. New York: Penguin.

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    Makes the case for greater congressional involvement in developing a new law of counterterrorism, while critiquing theories that rely predominantly on either executive or judicial power.

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Detention

Detention has been one of the most contested issues in the War on Terrorism. Greenberg 2009 and Margulies 2006 describe the origins of Guantánamo, where the executive branch sought to create a prison outside the law. Hafetz 2011 focuses on the role of habeas corpus in challenging enemy combatant detentions, while Rona 2007 critiques those detentions for their failure to comply with international human rights standards. Neuman 2009 describes the implications of the Guantánamo detainee habeas corpus cases for the extraterritorial application of constitutional protections. Chesney 2011 describes US military detentions in Iraq. Goodman 2009 describes the basis for and limits on the detention of terrorist fighters under international humanitarian law. Cole 2009 argues that the wartime detention of enemy combatants has precedents in historical practice but should be narrowly limited and subject to significant procedural safeguards. Pearlstein 2014 examines looming but unresolved questions surrounding the duration of the War on Terrorism and its impact on detentions at Guantánamo. Resnik 2010 argues that enemy combatant detentions are less exceptional than typically assumed and share important similarities with the treatment of immigrants and convicted prisoners.

  • Chesney, Robert M. 2011. Iraq and the military detention debate: Firsthand perspectives from the other war, 2003–2010. Virginia Journal of International Law 51:549–635.

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    Evaluates the legal framework for US military detentions in Iraq and describes the lessons learned from those detentions.

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  • Cole, David. 2009. Out of the shadows: Preventive detention, suspected terrorists, and war. California Law Review 97:693–750.

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    Argues that preventive detention of suspected terrorists should be narrowly limited to situations that cannot be adequately addressed by the criminal justice system and should be subject to rigorous procedural safeguards.

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  • Goodman, Ryan. 2009. The detention of civilians in armed conflict. American Journal of International Law 103:48–73.

    DOI: 10.2307/20456721Save Citation »Export Citation »

    Describes the legal basis for and the limits on the detention of terrorist fighters under international humanitarian law.

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  • Greenberg, Karen. 2009. The least worst place: Guantánamo’s first 100 days. Oxford: Oxford Univ. Press.

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    Provides a detailed account of the establishment and first days of the US detention center at Guantánamo and its implications for US law and policy.

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  • Hafetz, Jonathan. 2011. Habeas corpus after 9/11: Confronting America’s new global detention system. New York: New York Univ. Press.

    DOI: 10.18574/nyu/9780814737033.001.0001Save Citation »Export Citation »

    Provides an overview of the development by the United States of a new global detention system after 9/11.

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  • Margulies, Joseph. 2006. Guantánamo and the abuse of presidential power. New York: Simon & Schuster.

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    Attributes the creation of the US detention center at Guantánamo to a sweeping conception of executive power that eschewed any legal constraints in the name of protecting national security.

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  • Neuman, Gerald L. 2009. The extraterritorial Constitution after Boumediene v. Bush. Southern California Law Review 82:259–290.

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    Explains why the Supreme Court’s 2008 decision in Boumediene v. Bush, which affirmed the constitutional right of Guantánamo detainees to habeas corpus, marked an important step in recognizing the extraterritorial application of constitutional protections.

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  • Pearlstein, Deborah N. 2014. How wartime detention ends. Cardozo Law Review 36:625–664.

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    Describes how the United States previously handled detentions at the close of war and the implications of this historical practice for concluding detentions in the War on Terrorism.

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  • Resnik, Judith. 2010. Detention, the war on terror, and the federal courts. Columbia Law Review 110:579–685.

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    Draws comparisons between detentions at Guantánamo and the treatment of immigrants and convicted prisoners in the United States during the last several decades.

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  • Rona, Gabor. 2007. An appraisal of U.S. practice relating to ‘enemy combatants.’ Yearbook of International Humanitarian Law 10:232–250.

    DOI: 10.1017/S1389135907002322Save Citation »Export Citation »

    Examines how the creation of new legal categories such as “unlawful enemy combatant” misrepresent the law of armed conflict, are inconsistent with international human rights obligations, and lead to abuses.

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Military Commissions

The use of military commissions after 9/11 is described in Bravin 2013. Glazier 2005 provides a historical overview, explaining that military commissions have been used sporadically in US history and were last used after the Second World War. Danelski 1996 remains an excellent account of the 1942 case involving a group of Nazi saboteurs that continues to serve as an important precedent for military commissions in the War on Terrorism. President Bush’s controversial November 2001 executive order reviving military commissions is described in Glazier 2003 and in Katyal and Tribe 2002. Ní Aoláin 2007 and Weiner 2007 offer perspectives on the Supreme Court’s 2006 in Hamdan v. Rumsfeld that invalidated the military commissions created by Bush’s November 2001 order. The subsequent legislation that authorized military commissions after Hamdan and that provides the current basis for commission prosecutions is examined in Vladeck 2015 and Margulies 2013.

  • Bravin, Jess. 2013. The terror courts: Rough justice at Guantanamo Bay. New Haven, CT: Yale Univ. Press.

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    Explains how military commissions developed as part of an effort to expand executive powers rather than out of concerns about the adequacy of the civilian justice system to handle terrorism cases.

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  • Danelski, David J. 1996. The saboteurs’ case. Journal of Supreme Court History 61:64.

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    An excellent historical account of the case of Nazi saboteurs in the United States whose military commission convictions were upheld by the Supreme Court during the height of the Second World War.

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  • Glazier, David. 2003. Kangaroo court or competent tribunal? Judging the 21st century military commission. Virginia Law Review 89:2005–2093.

    DOI: 10.2307/3202371Save Citation »Export Citation »

    A critical examination of the military commissions created by President Bush after 9/11, including their substantive and procedural shortcomings.

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  • Glazier, David. 2005. Precedents lost: The neglected history of the military commission. Virginia Journal of International Law 46:5–81.

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    A historical overview of the use of military commissions during various points in US history.

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  • Katyal, Neal K., and Laurence H. Tribe. 2002. Waging war and deciding guilt: Trying the military tribunals. Yale Law Journal 111:1259–1310.

    DOI: 10.2307/797612Save Citation »Export Citation »

    Explains how the military commissions created by President Bush violated the constitutional principle of equal protection by confining their jurisdiction to foreign nationals and excluding US citizens.

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  • Margulies, Peter. 2013. Defining punishing, and membership in the community of nations: Material support and conspiracy charges in military commissions. Fordham International Law Journal 36:1–92.

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    Defends a more flexible approach to military commissions that would include offenses that do not constitute war crimes under international law.

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  • Ní Aoláin, Fionnuala. 2007. Hamdan and Common Article 3: Did the Supreme Court get it right? Minnesota Law Review 91:1523–1561.

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    Examines the Supreme Court’s determination in Hamdan v. Rumsfeld that Common Article 3 applies to the armed conflict with Al Qaeda.

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  • Vladeck, Stephen I. 2015. Military courts and Article III. Georgetown Law Journal 13:933–1001.

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    Frames the discussion about the proper limits of military commission jurisdiction within a larger theory about permissible exceptions to federal court jurisdiction.

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  • Weiner, Allen S. 2007. Hamdan, terror, war. Lewis & Clark Law Review 11:997–1020.

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    Analyzes the implications of the Supreme Court’s ruling in Hamdan v. Rumsfeld for the US government’s claim that it is engaged in a global war on terrorism.

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Interrogations and Torture

Excellent overviews of the development of state-sanctioned torture during the Bush administration are provided in Mayer 2008 and Sands 2008. Greenberg and Dratel 2005, Danner 2004, and Jaffer and Singh 2009 provide government documents that paved the way for torture at Abu Ghraib, Bagram, Guantánamo, and secret CIA black sites. Kreimer 2003 discusses the legality of torture under the Constitution. Luban 2014 describes the threat posed by torture to the modern liberal state and the compromises between security and human rights. Scheppele 2005 challenges hypothetical justifications commonly used to justify torture. Kurnat 2008 and Slahi 2015 provide firsthand accounts of torture by the victims themselves.

  • Danner, Mark. 2004. Torture and truth: American, Abu Ghraib, and the War on Terror. New York: New York Review of Books.

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    A collection of documents that highlights the rise of the US torture program and the role lawyers played in creating it.

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  • Greenberg, Karen, and Josh Dratel, eds. 2005. The torture papers: The road to Abu Ghraib. New York: Cambridge Univ. Press.

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    A collection of US government memoranda and other documents that laid the basis for the use of torture and other coercive interrogation methods.

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  • Jaffer, Jameel, and Amrit Singh. 2009. Administration of torture: A documentary record from Washington to Abu Ghraib and beyond. New York: Columbia Univ. Press.

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    Presents documents obtained by the American Civil Liberties Union that describe the development and implementation of a program of torture by the US government.

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  • Kreimer, Seth F. 2003. Too close to the rack and the screw: Constitutional constraints on torture in the War on Terrorism. University of Pennsylvania Journal of Constitutional Law 6:278–325.

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    Discusses the legality of torture under the US Constitution in response to reports that the United States was using torture as a tool in the War on Terrorism.

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  • Kurnat, Murat. 2008. Five years of my life: An innocent man in Guantanamo. New York: St. Martin’s Griffin.

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    Firsthand account by former Guantánamo detainee Murat Kurnaz of his torture and abusive detention by the United States following his seizure in Pakistan.

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  • Luban, David. 2014. Torture, power, and law. Cambridge, UK: Cambridge Univ. Press.

    DOI: 10.1017/CBO9781107279698Save Citation »Export Citation »

    A critical examination of the justifications for torture and of the impact of torture on liberal democracies.

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  • Mayer, Jane. 2008. The dark side: The inside story of how the War on Terror turned into a war on American ideals. New York: Anchor.

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    Traces the origins of US policy after 9/11 that relied extensively on the use of torture and other abusive interrogation tactics against terrorism suspects.

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  • Sands, Philippe. 2008. Torture team: Rumsfeld’s memo and the betrayal of American values. London: St. Martin’s.

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    Describes the role of senior Bush administration officials in approving a program of torture that undermined longstanding principles under the Geneva Conventions and international human rights law.

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  • Scheppele, Kim Lane. 2005. Hypothetical torture in the “War on Terrorism.” Journal of National Security Law and Policy 1:285–340.

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    Rejects justifications typically offered to defend torture, such as the ticking-time bomb scenario, on sociological grounds.

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  • Slahi, Mohamedou Ould. 2015. Guantánamo diary. New York: Little, Brown.

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    A firsthand account by a detainee subjected to some of the most coercive tactics employed at Guantánamo.

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Extraordinary Rendition

Satterthwaite 2007 and Fisher 2008 describe the emergence of the US extraordinary rendition program after 9/11. Weissbrodt and Bergquist 2006 and Sadat 2007 analyze extraordinary rendition under international human rights law. Frankopan 2008 examines rendition under the international humanitarian law. A defense of the president’s power to transfer suspects is provided in Yoo 2004. The participation of other countries, particularly in Europe, was essential for the rendition program, which included transferring suspects both to CIA-run secret prisons (or “black sites”) and to third countries for coercive interrogation. Fabbrini 2014 describes the leading challenge to European participation in the US rendition program in the European Court of Human Rights. Fabbrini 2011 offers a comparative analysis between the United States and Italy regarding the application of the state secrets privilege in litigation over renditions. A discussion of the consequences of extraordinary rendition under international criminal law is provided in Messineo 2009.

  • Fabbrini, Federico. 2011. Extraordinary renditions and the state secrets privilege: Italy and the United States compared. Italian Journal of Public Law 2:255–304.

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    Analyzes the application of the state secrets privilege in litigation surrounding rendition in Italy and the United States.

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  • Fabbrini, Federico. 2014. The European Court of Human Rights, extraordinary renditions and the right to truth: Ensuring accountability for gross human rights violations. Human Rights Law Review 14.1: 85–106.

    DOI: 10.1093/hrlr/ngt017Save Citation »Export Citation »

    Analyzes the decision of the European Court of Human Rights in the case of El-Masri v. The Former Yugoslav Republic of Macedonia.

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  • Fisher, Louis. 2008. Extraordinary rendition and the price of secrecy. American University Law Review 57:1405–1451.

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    Describes the growth of extraordinary rendition and provides a legal framework for assessing it.

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  • Frankopan, Ingrid Detter. 2008. Extraordinary rendition and the law of war. North Carolina Journal of International Law and Commercial Regulation 33:657–691.

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    Examines the global rendition program under international humanitarian law.

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  • Messineo, Francesco. 2009. Extraordinary renditions and state obligations to criminalize and prosecute torture in light of the Abu Omar case in Italy. Journal of International Criminal Justice 7:1023–1044.

    DOI: 10.1093/jicj/mqp075Save Citation »Export Citation »

    Discusses the status of extraordinary rendition under international criminal law.

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  • Sadat, Leila Nadya. 2007. Extraordinary rendition, torture, and other nightmares from the War on Terrorism. George Washington Law Review 75:1200–1247.

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    Critiques the rendition program under international human rights law.

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  • Satterthwaite, Margaret L. 2007. Rendered meaningless: Extraordinary rendition and the rule of law. George Washington Law Review 75:1333–1420.

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    Summarizes the rise of the rendition program and the applicable international legal framework.

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  • Weissbrodt, David, and Amy Bergquist. 2006. Extraordinary rendition: A human rights analysis. Harvard Journal of Human Rights 19:123–159.

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    Examines the rendition program against the requirements of international human rights law.

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  • Yoo, John. 2004. Transferring terrorists. Notre Dame Law Review 79:1183–1234.

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    Describes the president’s power to transfer individuals in the War on Terrorism.

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Targeted Killing

The United States’ increasing use of armed drones to engage in lethal strikes against terrorist suspects is detailed in Mazzetti 2013 and Scahill 2013. Shane 2015 examines the case of Anwar al-Awlaki, the US citizen and suspected terrorist whose killing by a US drone strike became a focal point in debates over targeted killing. O’Connell 2009 advocates limiting lethal drone strikes to areas of active hostilities. Chesney 2013 calls for the development of a new legal architecture that recognizes the reality presented by today’s terrorist threats and does not depend on traditional conceptions of a battlefield. Banks and Raven-Hansen 2003 discusses the legality of targeted killing under US law. Bethlehem 2012, Blank 2012, and Deeks 2012 examine the legality of targeted killings under international law. Blum and Heymann 2010 and Guiora 2012 examine various legal, moral, and strategic issues raised by targeted killings. Accountability for targeted killings is discussed in Alston 2011.

  • Alston, Philip. 2011. The CIA and targeted killings beyond borders. Harvard National Security Journal 2:283–446.

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    Describes the failure of accountability and oversight mechanisms for the use of lethal force by the CIA.

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  • Banks, William C., and Peter Raven-Hansen. 2003. Targeted killing and assassination: The U.S. legal framework. University of Richmond Law Review 37:667–749.

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    Discusses the circumstances under which the United States can engage in targeted killing under domestic law and distinguishes targeted killing from assassination.

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  • Bethlehem, Daniel. 2012. Self-defense against an imminent or actual armed attack by non-state actors. American Journal of International Law 106:771–777.

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    Sets forth principles intended to govern the use of force against non-state actors, including a state’s right of self-defense against an imminent or armed attack by a non-state actor.

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  • Blank, Laurie R. 2012. After “Top Gun”: How drone strikes impact the laws of aar. University of Pennsylvania Journal of International Law 33:675–717.

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    Examines the implications of lethal drone strikes for jus in bello principles of international humanitarian law, such as the principles of distinction and proportionality.

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  • Blum, Gabriella, and Philip Heymann. 2010. Law and policy of targeted killing. Harvard National Security Journal 1:145–170.

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    Discusses the legal, moral, and strategic implications of targeted killing, and compares US and Israeli experiences in this area.

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  • Chesney, Robert M. 2013. Beyond the battlefield, beyond Al Qaeda: The destabilizing legal architecture of counterterrorism. Michigan Law Review 112:163–222.

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    Contends that the shifting nature of global terrorist threats requires a new legal architecture that allows for greater flexibility in the use of force abroad, including in remote areas, and that does not rely on traditional conceptions of battlefields or armed conflict.

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  • Deeks, Ashley S. 2012. “Unwilling or Unable”: Toward a normative framework for extraterritorial self-defense. Virginia Journal of International Law 52:483–549.

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    Examines when it is appropriate for one state to use force against non-state actors operating in the territory of another state based on that state’s unwillingness or inability to address the threat.

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  • Guiora, Amos N. 2012. Targeted killing: When proportionality gets all out of proportion. Case Western Reserve Journal of International Law 45:235–254.

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    Explains why targeted killing, while lawful, must be subjected to rigorous standards, procedures, and guidelines.

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  • Mazzetti, Mark. 2013. The way of the knife: The CIA, a secret army, and a war at the ends of the earth. New York: Penguin.

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    Charts the CIA’s increasing involvement in paramilitary operations and the growing reliance by the United States on drone strikes as part of its counterterrorism policy.

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  • O’Connell, Mary Ellen. 2009. Combatants and the combat zone. Richmond Law Review 43:845–864.

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    Argues for the maintenance of strict prohibitions against the use of armed force, including drone strikes, outside areas of active hostilities.

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  • Scahill, Jeremy. 2013. Dirty wars: The world is a battlefield. New York: Nation.

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    An account of America’s initiation of secret war making across the globe and its increasing reliance on targeted killing as a counterterrorism strategy.

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  • Shane, Scott. 2015. Objective Troy: A terrorist, a president, and the rise of the drone. New York: Tim Duggan.

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    Examines the case of Anwar al-Awlaki, the US-born radical cleric whose death by a drone strike became a catalyst in the legal and political debate over targeted killing.

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Surveillance

The scope of US government surveillance expanded significantly after 9/11. The erosion of statutory and constitutional protections caused by new forms of electronic surveillance and bulk data collection is described in Donohue 2014. Richards 2013 describes some implications of this increasing surveillance for conceptions of privacy. Kerr 2004 explains why legislators, not courts, are best positioned to address challenges posed by new technologies. An examination of the array of legal rules and regulations that govern the intelligence community is discussed in Schlanger 2015. Secrecy surrounding surveillance laws and the implications for the Constitution is examined in Kitrosser 2007. Daskal 2015 examines the Constitution’s application to foreign nationals outside the United States whose private communications are swept up by NSA surveillance. Milanovic 2014 assesses global surveillance programs based on international human rights law. Reidenberg 2014 and Bignam and Resta 2015 compare US and European approaches to data surveillance laws and privacy. Kahn 2012 describes other forms of government surveillance, such as the use of watchlists.

  • Bignam, Francesca, and Giorgio Resta. 2015. Transatlantic privacy regulation: Conflict and cooperation. Law and Contemporary Problems 78:231–236.

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    Examines US and European approaches to privacy and the implications for the regulation of government surveillance and data collection.

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  • Daskal, Jennifer. 2015. The un-territoriality of data. Yale Law Journal 125:326–398.

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    Explores the unique features of data collection and contends that Fourth Amendment privacy protections should not be artificially limited by territorial boundaries.

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  • Donohue, Laura. 2014. Bulk metadata collection: Statutory and constitutional considerations. Harvard Journal of Law & Public Policy 37:757–900.

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    Explains how programs that allow for the bulk collection of telephony and Internet metadata have undermined privacy protections provided by the Foreign Intelligence Surveillance Act of 1978 and the Fourth Amendment.

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  • Kahn, Jeffrey. 2012. Mrs. Shipley’s ghost: The right to travel and terrorist watchlists. Ann Arbor: Univ. of Michigan.

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    Describes the government’s increasing reliance on watchlists and how they are used to deny individuals the right to travel through the creation of no-fly lists.

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  • Kerr, Orin. 2004. The Fourth Amendment and new technologies: Constitutional myths and the case for caution. Michigan Law Review 102:801–887.

    DOI: 10.2307/4141982Save Citation »Export Citation »

    Explains why the legislative branch, rather than the judiciary, is best situated to balance concerns between security and privacy in the face of rapid technological change.

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  • Kitrosser, Heidi. 2007. “Macro-transparency” as structural directive: A look at the NSA controversy. Minnesota Law Review 91:1163–1207.

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    Discusses the secrecy surrounding surveillance laws and programs and the importance of transparency to the Constitution.

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  • Milanovic, Marko. 2014. Human rights treaties and foreign surveillance: Privacy in the digital age. Harvard Journal of International Law 55:81–146.

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    Evaluates the legal implications of mass global surveillance programs in light of privacy protections established by international human rights treaties.

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  • Richards, Neil. 2013. The dangers of surveillance. Harvard Law Review 126:1934–1965.

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    Examines the ramifications of living in an age of surveillance, how it is changing conceptions of privacy, and its impact on the relationship among individuals, government, and society.

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  • Reidenberg, Joel R. 2014. The data surveillance state in the United States and Europe. Wake Forest Law Review 49:583–608.

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    Compares US and European approaches to data surveillance and privacy.

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  • Schlanger, Margo. 2015. Intelligence legalism and the National Security Agency’s civil liberties gap. Harvard National Security Journal 6:112–204.

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    Discusses the role of legalism within the US intelligence community and how an over-emphasis on formal rules can inadvertently undermine civil liberties.

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Counter-Radicalization and Policing

A growing literature examines the various counter-radicalization programs undertaken as part of the War on Terrorism. Akbar 2013 describes the increasing number of programs countering extremism and radicalization that focus on monitoring and influencing Muslim communities within the United States. Cherney and Hartley 2015 examines concerns raised by law enforcement’s efforts to engage Muslim communities in Western jurisdictions. Waxman 2012 discusses the federalism dimensions of domestic counterterrorism policies. A focus on community policing and its impact is provided in Aziz 2014 and Tyler, et al. 2010. Rascoff 2012 explains how emerging US counter-radicalization programs draw heavily on British examples and highlights the constitutional concerns raised by programs that seek to shape religious ideology. Huq 2010 explains how North American and European governments represent Muslims, Arabs, and South Asians in an attempt to map how individuals decide to commit acts of terrorism. Walker 2007 and Walker and Rehman 2012 discuss UK approaches to counter-radicalization. Vidino and Brandon 2012 describes counter-radicalization measures in Europe.

  • Akbar, Amna. 2013. Policing ‘radicalization.’ UC Irvine Law Review 3:809–883.

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    Examines the preventive focus of federal counter-radicalization programs in the United States and these programs’ impact on Muslim communities.

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  • Aziz, Saher F. 2014. Policing terrorists in the community. Harvard National Security Journal 5:147–224.

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    Describes how community policing can exacerbate ongoing civil liberties violations and harm otherwise positive relations between Muslims and law enforcement.

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  • Cherney, Adrian, and Jason Hartley. 2015. Community engagement to tackle terrorism and violent extremism. Policing and Society (October):1–14.

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    Examines the tensions created by police efforts to engage Muslim communities in counter-terrorism efforts in Western countries.

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  • Huq, Aziz. 2010. Modeling terrorist radicalization. Duke Forum for Law and Social Change 2:39–69.

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    Explains how states portray Muslims, Arabs, and South Asians through counter-radicalization programs.

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  • Rascoff, Samuel J. 2012. Establishing official Islam? The law and strategy of counter-radicalization. Stanford Law Review 64:125–189.

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    Discusses the constitutional implications of counter-radicalization programs focused on shaping religious ideology.

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  • Tyler, Tom, Stephen Schulhofer, and Aziz Huq. 2010. Legitimacy and deterrence effects in counterterrorism policing: A study of Muslim Americans. Law and Society Review 44:365–398.

    DOI: 10.1111/j.1540-5893.2010.00405.xSave Citation »Export Citation »

    Examines the circumstances under which the Muslim American community cooperates voluntarily with the police efforts to combat terrorism.

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  • Vidino, Lorenzo, and James Brandon. 2012. Countering radicalization in Europe. London: International Center for the Study of Radicalisation and Political Violence.

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    Describes the challenges European governments face in seeking to implement counter-radicalization programs.

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  • Walker, Clive. 2007. Keeping control of terrorists without losing control of constitutionalism. Stanford Law Review 59:1395–1464.

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    Critiques the UK’s use of control orders that restrict individual liberty without the protections afforded by the criminal justice system.

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  • Walker, Clive, and Javaid Rehman. 2012. “Prevent” responses to Jihadi extremism. In Global anti-terrorism law and policy. Edited by Victor V. Ramraj, 242–267. Cambridge, UK: Cambridge Univ. Press.

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    Examines the UK government’s controversial Prevent strategy that has sought to engage local communities but that has instead created fear and mistrust.

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  • Waxman, Matthew C. 2012. National security federalism in the age of terror. Stanford Law Review 64:289–350.

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    Argues for greater emphasis on federal-state cooperation in countering domestic terrorism.

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Terrorism and Crime

LaFree and Dugan 2004 compares crime and terrorism based on the application of conceptual and methodological approaches used in criminology. Horgan 2005 examines the factors that motivate individuals to become terrorists. Mills, et al. 2015 examines the relationship between terrorism and hate crime. Kluch and Vaux 2016 charts patterns in terrorist activity since the 1970s. An examination of terrorist involvement in drug trafficking is provided in Asal, et al. 2015. Teets and Chenoweth 2015 examines the links between terrorism and corruption. Hamm 2007 discusses the utility of using conventional criminal investigative methods to address terrorism, while LaFree and Hendrickson 2007 examines the role of criminologists in fighting terrorism. Gonzalez, et al. 2014 examines the role of women in domestic terrorism. Shields, et al. 2015 describes the increasing number of terrorism prosecutions and convictions in the United States.

  • Asal, Victor, H. Brinton Milward, and Eric W. Schoon. 2015. When terrorists go bad: Analyzing terrorist organizations’ involvement in drug smuggling. International Studies Quarterly 59.1: 112–123.

    DOI: 10.1111/isqu.12162Save Citation »Export Citation »

    Highlights the intersection of terrorism and organized crime by focusing on terrorists’ involvement in drug trafficking.

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  • Gonzalez, Alessandra L., Joshua D. Frelich, and Steven M. Chermak. 2014. How women engage in homegrown terrorism. Feminist Criminology 9.4: 344–346.

    DOI: 10.1177/1557085114529809Save Citation »Export Citation »

    Discusses the varying catalysts for women’s involvement in domestic terrorism.

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  • Hamm, Mark S. 2007. Terrorism as crime: From Oklahoma City to Al-Qaeda and beyond. New York: New York Univ. Press.

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    Argues that the most effective way to prevent, prosecute, and deter terrorism is through conventional criminal investigative measures.

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  • Horgan, John. 2005. The psychology of terrorism. London: Routledge.

    DOI: 10.4324/9780203496961Save Citation »Export Citation »

    Identifies the various factors that help explain why individuals become terrorists based on interviews with former terrorists.

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  • Kluch, Sofia Pinero, and Alex Vaux. 2016. The non-random nature of terrorism: An exploration of where and how global trends of terrorism have developed over 40 years. Studies in Conflict and Terrorism (December):1–37.

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    Concludes that terrorism is generally concentrated both geographically and temporarily, with most countries experiencing peace or low levels of terrorism and only a few countries experiencing substantial outbreaks or prolonged terrorism.

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  • LaFree, Gary, and Laura Dugan. 2004. How does studying terrorism compare to studying crime? In Terrorism and counter-terrorism: Criminological perspectives. Edited by Mathieu Deflem, 53–74. New York: Elsevier.

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    Concludes that criminological theory, data collection, and methodological approaches may be usefully applied to terrorism, notwithstanding the differences between terrorism and common forms of crime.

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  • LaFree, Gary, and James Hendrickson. 2007. Build a criminal justice policy for terrorism. Criminology and Public Policy 6.4: 781–790.

    DOI: 10.1111/j.1745-9133.2007.00471.xSave Citation »Export Citation »

    Discusses the advantages of a criminal justice approach to fighting terrorism and the important role criminologists can play.

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  • Mills, Colleen E., Joshua D. Freilich, and Steven M. Chermak. 2015. Extreme hatred: Revisiting the hate crimes and terrorism relationship to determine whether they are ‘close cousins’ or ‘distant relatives.’ Crime and Delinquency (December):1–33.

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    Finds correlations in countries between increases in hate crimes and increases in terrorism, suggesting that the two may be more akin to close relatives than distant cousins.

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  • Shields, Christopher A., Brent L. Smith, and Kelly R. Damphousse. 2015. Prosecuting terrorism: Challenges in the post-9/11 World. Sociology of Crime, Law & Deviance 20:173–195.

    DOI: 10.1108/S1521-613620150000020013Save Citation »Export Citation »

    Describes changes in strategies in prosecuting terrorism and the increasing number of terrorism convictions.

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  • Teets, Jessica C., and Erica Chenoweth. 2015. To bribe or to bomb: Do terrorism and corruption go together? In Corruption, global security, and the world order. Edited by Robert I. Rothberg, 167–193. Cambridge, MA: Brookings Institute.

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    Examines the connections between terrorism and corruption to determine how corruption increases terrorist activity.

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First Amendment Freedoms

Bhagwat 2014 describes the impact of the War on Terrorism on the right to freedom of association under the First Amendment. The relationship between terrorism and online speech is examined in Margulies 2004 and Morrison 2011. Cole 2003 draws parallels between the use of anti-terrorist material support laws and the targeting of unpopular individuals and groups during the Cold War. Stone 2007 and Vladeck 2007 examine the protections afforded to the press and journalists in connection with the acquisition and publication of classified information pertaining to national security. Papandrea 2014 examines constitutional protections for whistleblowers who leak information to promote public debate, while Pozen 2013 describes the way in which leaks are often used to advance executive branch interests.

  • Bhagwat, Ashutosh. 2014. Terrorism and associations. Emory Law Journal 63:581–638.

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    Provides a framework with which to evaluate the First Amendment right to freedom of association against the threat posed by terrorist organizations.

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  • Cole, David. 2003. The new McCarthyism: Repeating history in the War on Terrorism. Harvard Civil Rights-Civil Liberties Law Review 38:1–29.

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    Compares penalizing individuals for providing material support to politically selected “terrorist” groups to previous instances of repression in American history.

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  • Margulies, Peter. 2004. The clear and present Internet: Terrorism, cyberspace, and the First Amendment. U.C.L.A. Journal of Law & Technology 8.2: 74–76.

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    Advocates a participant-centered approach to free speech and the Internet that focuses on a speaker’s degree of involvement with terrorist organizations.

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  • Morrison, Steven R. 2011. Terrorism online: Is speech the same as it ever was? Creighton Law Review 44:963–1002.

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    Argues for the importance of maintaining First Amendment free speech protections on the Internet and in related technologies notwithstanding the terrorist threat.

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  • Papandrea, Mary-Rose. 2014. Leaker traitor whistleblower spy: National security leaks and the First Amendment. Boston University Law Review 94:449–544.

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    Argues that whistleblowers possess First Amendment rights and explains the need to determine whether information is leaked to foster public debate or to aid the enemy.

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  • Pozen, David E. 2013. The leaky leviathan: Why the government condemns and condones unlawful disclosures of information. Harvard Law Review 127:512–634.

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    Contends that government leaks represent an adaptive mechanism of information control by the executive branch.

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  • Stone, Geoffrey R. 2007. Government secrecy versus freedom of the press. Harvard Law & Policy Review 1:185–217.

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    Examines the constitutional protections afforded to the press for publishing or to journalists for receiving or soliciting classified information.

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  • Vladeck, Stephen I. 2007. Inchoate liability and the Espionage Act: The statutory framework and the freedom of the press. Harvard Law & Policy Review 1:219–237.

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    Explains the need for stronger First Amendment protections for journalists who publish national security information in the public interest, especially against potential espionage charges.

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