Works-in-Progress
- National Security Deference, (law review article) examining the theoretical foundations of judicial deference to legal and factual determinations made by executive branch officials across a variety of doctrinal contexts.
- Carefully-Calibrated Detention Reform: A Reply to Professor Cole, (forthcoming 2008) (essay) commenting on Professor David Cole’s criticisms of existing detention authorities relating to terrorism, as part of a collection of papers drafted under the auspices of the Keystone Center.
- State Secrets Legislation and the Question of Reform, Roger Williams Law Review (forthcoming 2008) (symposium), this short essay, derived from testimony before the Senate Judiciary Committee, examines proposals for legislative reform of the state secrets privilege.
- The State Secrets Privilege, in Legal Issues in the Struggle Against Terror, (John N. Moore & Robert Turner, eds.) (forthcoming 2008) (book chapter), this book chapter, based in significant part on my earlier article addressing the state secrets privilege, describes the origins and evolution of the privilege, current controversies surrounding it, and the prospects for reform.
- Terrorism and the Convergence of Criminal and Military Detention Models, 60 Stanford Law Review, (forthcoming February 2008) (co-authored with Jack Goldsmith), describing the extent to which the traditional criminal and military detention models have converged with respect to detention criteria and procedural safeguards, and discussing prospects for reform in light of that trend.
Books, Book Chapters, Articles, Essays
- Federal Prosecution of Terrorism-Related Offenses: Conviction and Sentencing Data in Light of the “Soft Sentence” and “Data Reliability Critiques, Lewis & Clark Law Review 851 (2007) (symposium), examining controversies associated with statistics relating to federal terrorism prosecutions, and offering a unique set of disposition and sentencing data in cases involving 18 U.S.C. § 2339B as a means to test the merits of those criticisms (available at http://ssrn.com/abstract_id=1005478).
- Beyond Conspiracy? Preventive Prosecution and the Challenge of Unaffiliated Terrorism, 80 Southern California Law Review 425 (2007), examining the scope of the Justice Department’s capacity to prosecute at an early stage in the context of suspects not affiliated with designated terrorist groups (available at http://ssrn.com/abstract=932608).
- State Secrets and the Limits of National Security Litigation, 75 George Washington Law Review 1249 (2007) (symposium), exploring the contours of the military and state secrets doctrine as it relates to civil litigation arising out of counterterrorism activities of the U.S. government) (available at http://ssrn.com/abstract=946676).
- Disaggregating Deference: Hamdan, the Judicial Power, and Executive Treaty Interpretations, 92 Iowa Law Review 1723 (2007), critiquing the doctrine of judicial deference to executive branch treaty interpretations (available at http://ssrn.com/abstract=931997).
- Anticipatory Prosecution in Terrorism-Related Cases, in The Changing Role of the American Prosecutor (Worrall & Nugent, eds.) (SUNY Press), (forthcoming 2007) (book chapter), providing a brief introduction to the various strategies employed by federal prosecutors in terrorism-related cases, with an emphasis on material support prosecutions (available at http://ssrn.com/abstract=944117).
- Terrorism and Criminal Prosecutions in the United States, a research paper commissioned by Canada’s Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182 to be made available to the public in 2008.
- Judicial Review, Combatant Status Determinations, and the Possible Consequences of Boumediene, 48 Harvard International Law Journal Online 62 (2007) (essay), discussing the future of Guantanamo detainee litigation under the Military Commissions Act and the Detainee Treatment Act (available at: http://www.harvardilj.org/online/110).
- Panel Report: Beyond Article III Courts: Military Tribunals, Status Review Tribunals, and Immigration Courts, 5 Cardozo Public Law, Policy and Ethics Journal 27 (2007) (symposium), summary of panel proceedings.
- Leaving Guantànamo: The Law of International Detainee Transfers, 40 University of Richmond Law Review 657 (2006), exploring the constitutional, statutory, and international legal issues that arise when GTMO detainees oppose transfer to the custody of their own government on the ground that they face an unacceptable risk of torture, with particular attention to questions of domestic judicial enforceability; the article includes an extended analysis of Geneva Convention issues relating to detainee status (draft available at http://ssrn.com/abstract=827604).
- The Sleeper Scenario: Terrorism-Support Laws and the Demands of Prevention, 42 Harvard Journal on Legislation 1 (2005), describing the origins and evolution of terrorism-support legislation, assessing the standard civil liberties critiques of them, and proposing legislative reforms to enhance their scope while addressing some civil liberties concerns (draft available at http://ssrn.com/abstract=587442).
- Careful Thinking about Counterterrorism Policy (reviewing Philip B. Heymann, Terrorism, Freedom, and Security: Winning without War), 1 Journal of National Security Law & Policy 169 (2005) (essay), discussing the use of the “war” label with respect to counterterrorism policy, in historical perspective (a version of this essay titled “Rhetoric, Practice, and Historical Perspective in the War on Terrorism” appears in 26 National Security Law Report 3 (Nov. 2004)) (available at http://www.mcgeorge.edu/jnslp/media/01-01/08%20Chesney%20Master.pdf).
- Democratic-Republican Societies, Subversion, and the Limits of Legitimate Political Dissent in the Early Republic, 82 North Carolina Law Review 1525 (2004) (symposium), examining the controversy surrounding the Democratic-Republican Societies for the light it sheds on competing conceptions of representative government and freedom of political association in the mid-1790s (available at http://ssrn.com/abstract=465820).
- The Proliferation Security Initiative and Interdiction of Weapons of Mass Destruction on the High Seas, 13 National Strategy Forum Review 5 (Fall 2003), also appearing in 25 National Security Law Report 5 (Oct. 2003) (essay), discussing the international law implications of WMD interdiction on the high seas.
- Civil Liberties and the Terrorism Prevention Paradigm: The Guilt by Association Critique, 101 Michigan Law Review 1408 (2003), (reviewing David Cole, Enemy Aliens and David Cole & James X. Dempsey, Terrorism and the Constitution) (annual survey of books issue), discussing the significance of the material support laws to the post-9/11 terrorism prevention paradigm and assessing the guilt-by-association objection to them, in the context of reviewing two recent books on antiterrorism law and policy) (available at http://ssrn.com/abstract=396503).
Pre-faculty Publications
- Old Wine or New? The Shocks-the-Conscience Standard and the Distinction Between Legislative and Executive Action, 50 Syracuse Law Review 981 (2000), exposing doctrinal confusion concerning the analytical framework to be applied in the context of substantive due process claims.
- National Insecurity: Nuclear Material Availability and the Threat of Nuclear Terrorism, 20 Loyola of Los Angeles International and Comparative Law Journal 29 (1997), discussing the national security threat posed by insufficient controls on fissile material in the Former Soviet Union and the risk that terrorist groups or rogue states might obtain such materials, and assessing America’s legislative response as of 1997.
