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Of late Empire has come out of the closet. The doctrine of preeminence and preemption proclaimed by the new National Security Strategy of the U.S., the Patriot Act adopted by the U.S. Congress, and the end-less world-wide 'War against Terrorism' proclaimed by Western powers have put into question the thus far taken for granted protections of liberal constitutions and the rule of law across the globe. As the project of global human rights and collective security appears yielding to reinvigorated imperial designs, it appears imperative that legal scholars explore the validity of universality claims of modern constitutionalism. This paper is a response to this imperative. A recent pronouncement of the Queen's Bench of the British High Court about the British colony of Diego Garcia (an Indian Ocean island leased to the U.S. for use as a military base) furnishes the point of departure for this project. The pronouncement of this court brings into sharp relief contradictions between liberal constitutionalism and imperatives of empire. Constitutional guarantees of British law were held not available to Diego Garcia on account of it being a colony. The recent pronouncements of the U.S. Circuit Court in the Gauntanamo cases (now before the Supreme Court) entail a parallel fracture in the constitutional order. The first part of the paper uses these cases as the vantage point to conduct a comparative study of the colonial question in American and British constitutional law. The working hypothesis is that the colonialism, saturated with issues of racial difference, has historically operated as, and continues to operate as, a governing exception to liberal constitutionalism. The second part of the paper turns to legal theory and examines whether it adequately takes the interface between colonialism and liberal constitutionalism into account. Here the working hypothesis is that Carl Schmitt's decisionist theory of constitutional exception, while providing a productive opening, needs to be modified to address the colonial fracture of liberal constitutionalism. [ABSTRACT FROM AUTHOR]

This paper explores the way in which Cold War politics and ideology, through its narrowing of the New Deal's broad understanding of "security," affected federally-funded social welfare programs. Beginning in the late 1930s and continuing through World War II, the Roosevelt Administration shrewdly coupled social security and national security. Its Federal Security Agency (FSA) - created through a congressionally-approved reorganization plan in 1939 - housed old age insurance, federal education assistance, and the Civilian Conservation Corps, for example, alongside civil defense programs, weapons development, and medical research. FSA administrators under both Roosevelt and Truman advocated the notion that war necessitated expansion, not retraction, of the welfare state. But the Cold War gave credence to a different understanding of "security," one that privileged "internal security," eschewed "collectivism," and championed the protections offered by the free market. As a result many advocates of a more liberal welfare state found their power stripped and their reforms stymied. Yet the perceived imperatives of the Cold War also presented opportunities. This paper describes how lawyers within the FSA used the anti-totalitarian notion of the Rule of Law to push for the expansive welfare state they had long envisioned. Unable to demand more generous social welfare benefits, they insisted that existing social welfare programs adopt the framework of legal rights, procedures, and principles that was essential to a free, democratic society. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Locating human trafficking in the context of transnational organized crime and national security - as opposed to insufficient human security and the violation of migrants' human rights and labor rights - demonstrates the tension between competing conceptions of "rights" in inter/national laws and transnational enforcement regimes. Drawing on a year of field research in Thailand, the paper explores the mobilization of rights by women's and children's advocacy groups to galvanize anti-trafficking reforms and implement them in Thailand's criminal justice response to human trafficking. I highlight how enforcement officials' multipleâ??and often conflictingâ??mandates and institutional culture problematize the implementation of rights-based reforms in the context of raids to rescue suspected trafficking victims. The paper suggests that although social movement organizations may mobilize women's rights as a tool to prevent trafficking and rehabilitate victims, efforts to advance women's rights through criminal justice interventions often create collateral consequences for the very groups they intend to assist and empower. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

As the U.S. Congress debates legislation to curb executive abuse of the state secrets privilege, this paper examines how the U.S. use and application of the state secrets privilege compares with that of other countries. The Article considers the history and use of the privilege in the United States, the derivation of the privilege from English precedent and the current efforts to reform the use of the privilege. As with many other initiatives related to the Bush Administration's war on terror, the question of the appropriate application of the privilege turns on issues of national security balanced with the need to preserve the rule of law, individual rights, liberty interests and government accountability.This paper also examines the history and use of the privilege in other nations which derive their litigation processes from the English model, and looks at recent trends in applying the privilege in Scotland, England, Israel and India. This comparative analysis contextualizes both the current and proposed use of the U.S. privilege and the current efforts at legislative reform, and concludes that the proposed reforms are a positive step toward restoring government accountability. The paper further concludes that the proposed reforms in some respects do not go far enough, and that they should explicitly account for alleged human rights abuses by the government in determining whether a claim of privilege should be upheld. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

In his discussion of the contemporary politics of uncertainty, Richard Ericson draws our attention to the growing trend of criminalizing the merely suspicious. At the heart of this trend is a proliferation and normalization of security measures intended to "preempt imagined sources of harm" (Ericson 2007). This paper explores the contemporary Canadian immigration security certificate mechanism as a case study in the politics of uncertainty. Political-discursive and concrete legal processes are discussed. Official government discourse about security certificates is characterized by a valuation of precautionary action against non-citizens on the basis of categorical suspicion. Certificates are applied through an executive act of "deeming" (Butler 2004) that translates suspicion into a finding of threat. In concrete terms, this involves the use of "counter-law" (Ericison 2007) to arrest and detain individuals through a process that employs coercive means but carefully avoids the traditional criminal justice system - and its associated safeguards. The paper concludes by discussing the ways in which security certificates and other mechanisms associated with the new politics of uncertainty recognize and reinforce pernicious binary distinctions between 'good citizens' and 'threatening others'. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

In 2006, more than 39 million United States citizens traveled to foreign countries aboard commercial air carriers. Was this their right or merely an activity permitted by their government? What statutory and constitutional restrictions should limit the ability of Americans to leave and return home? How have legal conceptions of a "right to international travel" changed over time, particularly during periods of heightened threats - real and imagined - to national security? The countervailing, twin forces of economic globalization and international terrorism render answers to these questions both more difficult and more urgent. Most American citizens imagine their right to engage in international travel - a right proclaimed by numerous international treaties - to be much more secure than it really is. This paper explores these questions through the harrowing case of two American citizens denied their "right" to return home from travel abroad because of government suspicion of terrorist entanglements. After a detailed examination of the constitutional arguments that have led the Supreme Court to grant only limited procedural protections to the right to international travel as an "aspect of liberty," the paper presents the argument for heightened judicial protection of the right to enter and leave the country as a fundamental right of United States citizenship. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Gender-based political asylum is a relatively new area of asylum law inthe United States. Legal actors arguing or adjudicating claims inimmigration court involving honor killing, rape, domestic violence orforced marriage, to name a few, must do so in the absence of explicitlegal guidance, leaving room for interpretation and inconsistency on thepart of immigration judges and trial attorneys representing theDepartment of Homeland Security. This paper examines the role of thestate in categorizing violence in claims for asylum as either politicaland, therefore, recognizable under the law or private, and beyond thepurview of the state. Through such everyday practices the stateconstructs frameworks for conceptualizing categories of violence andharm. This paper considers the circumstances under which the staterecognizes violence as political and (re)produces boundaries betweenpublic and private. How do those seeking asylum address the question ofpolitics? How is the violence experienced by women marked through thelegal process and how does it differ from that of men? Whatimplications do concerns about gender-based, especially sexual, violencein the U.S. have on the state's willingness to address the same sorts ofviolence abroad? ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper examines the assumption that a reduction in personal privacy is the necessary cost of improved national security. On the surface, it would seem uncontroversial that improved surveillance might assist a government in its law enforcement and national security efforts. Nevertheless, the relationship is not straightforward. First, a reduction in individual privacy may improve national security or law enforcement while creating new forms of insecurity. Second, a reduction in privacy might be an aspect of "security theatre" and might not actually produce any real improvements in national security or law enforcement. Third, a reduction in individual privacy may have distributional implications. While general security increases, certain individuals or groups may bear the bulk of the costs of the privacy reduction - for example, by being disproportionately included in the false positives turned up by government surveillance schemes. The paper will seek to make explicit the complexities hidden within the trade-off between privacy and security. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

In this paper I offer a new theoretical look into the ways in which 'counterterrorist efforts' have infringed human rights. First, the paper is explicating how conditions of uncertainty are expanding the state into civil society. Second, the paper documents various comparative localities in which such expansion has taken place, especially following September 11th. Third, the paper explores why hi-technology allows further such an abusive expansion of the state. Fourth, the paper offers a critical assessment of judicial review in the context of 'counterterrorist' efforts. Fifth, the paper offers a theoretical framework through deconstruction of power relations in the modern nation-state in order to better comprehend how cultures of national security may infringe upon human rights. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Much has been written and argued about global climate change since its emergence in the late 1970s. From a total rejection to a gradual and rather reluctant acceptance, the debate on climate change has been wrought with controversy. While the occurrence of global climate change is no longer seems to be challenged, the issue now being debated is "how much" and "when". While nature would have contributed to the process, it is no longer seriously disputed that it is a human-induced phenomenon.The human cost of climate change will be astronomical. These range from the very survival of human beings to adapting to different livelihoods, crops, cultural practices, and even a different lifestyle as well as displacement and migration in some instances. Thus, a broad range of human rights can be violated as a result of global climate change.This paper seeks to discuss the impact that global climate change will have on the realization of human rights and the implications for international law. It discusses the protected rights that could be violated as a result of climate change, the response of the international community to global climate change and its adequacy, and how international law must respond to the threat posed by climate change. It also seeks to deal with the new category of people called "environmental refugees" who have become displaced as a result of environment-related causes which are exacerbated by climate change. It is also predicted that some of these environmental problems caused by global climate change - soil erosion, deforestation (and desertification), and lack of potable water - will play a role in increasing the incidence of conflict thereby undermining regional and/or international peace and security. In short, global climate change can give rise to complex, inter-woven issues at the international level leading to unprecedented changes in international society. The paper seeks to discuss whether the present international legal order can cope with these challenges. Given that these concerns cut across a wide spectrum of issues - environmental, economic and social - it would seem that global climate change poses a particular challenge to sustainable development. In other words, global climate change can undermine the very process of sustainable development - a process that was endorsed by the international community at the Rio Conference on Environment and Development in 1992 and reiterated at the World Summit on Sustainable Development in 2002.Key words - Global Climate Change, Environment, International Human Rights Law, Sustainable Development, international peace and security, environmental refugees. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Since 9/11, the issue of detention of non-citizens suspected of terrorism has been in the spotlight of political, academic and media debate. Many countries have implemented a special certification process for persons deemed to be security threats which allows for their detention and deportation. Given the complicated process of collecting intelligence in national security cases and lengthiness of its examination, such non-citizens can often be detained for months and even years before final decisions on their cases. Even those who are recognized as security threats often cannot be deported because of the risk of torture that they would face in a destination country. These individuals therefore face a potentially indefinite detention. The current security certificate schemes often fail to provide adequate solutions for the above-mentioned scenarios of lengthy detention. This paper argues for the need to find such a solution and offers a comparative analysis of existing practices in Canada, the UK and New Zealand that can serve as the first step in this direction. In scrutinizing the existing cases, the paper specifically focuses on two issues: (1) the different regimes of treatment (if any) of citizens suspected of terrorism and non-citizens held on similar allegations; (2) the possibility non-citizens' release from detention under certain conditions. Drawing on the array of available scenarios and reasoning, the paper attempts to generate a set of factors and conditions that can allow for release of security detainees yet effectively reduce risk of them absconding or posing a danger to community. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The topic of expiring provisions within the U.S.A. Patriot Act of 2001 (Patriot Act) has received much debate within Congress and the general public. While Congressional debate focuses primarily upon the expiring provisions in the Patriot Act, no on discusses the moment that was missed in December, 2005 when an amendment aimed to alter the existing and controversial formula for allocating funds for first responders in their critical functions to prevent, prepare for and respond to acts of terrorism, was shelved, perhaps due to pork barrel influence. This paper applies public economics methodology to address a fundamentally legal problem created by terrorism. What is the optimal plan for Congress to allocate funds for counterterrorism and homeland security? This paper proposes an economic model for allocating federal Department of Homeland Security (DHS) grant funds to states to maximize homeland security "needs" and priorities. The approach is to model homeland security funding as resulting from social welfare maximizing goals of a benevolent social planner. State government data are used to infer the optimal funding levels to cover expected damages associated with various targets: population density, hazardous material sources, federal courts, hospitals, interstates, pipelines, power generation, public water use, airports, universities, port capacity, and confined feeding operations. The difference between vulnerability-based allocations and the SHSP allocations indicate that the SHSP program over-compensates for population-based vulnerabilities and under-compensates for other vulnerabilities. The results suggest that the HSGP does not eliminate the population-bias of the SHSP. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The devastation caused by hurricanes of Katrina and Rita in 2005 highlighted the importance of federal, state and local response in the face of disaster. It also highlighted the importance of allocating homeland security funds to areas in need. Since the attacks of September 11, federal spending on assistance to the states for law enforcement, emergency services, and firefighting has increased by more than 1,000 percent. This paper examines the political factors contributing to the allocation of grant funding, both in terms of current outlays and new outlays, for one of the largest federal formula grant programs, the Department of Homeland Security, State Homeland Security Grant Program (SHSP). In a systematic study of state allocations for 2003, statistical regression results show that current outlays and new outlays are significantly motivated by congressional representation and partisanship. While Committee membership has the correct sign, it is not significant once we adjust for population. These results imply that states that have larger political clout in Congress get more grant funding and states that are aligned to the opposite political party get more money. States with these attributes will continue to lobby in favor of the current formula. This paper provides an explanation for failures in Congress (most recently in December 2005) to correct for these political biases in the current SHSP funding formula. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Neoliberal strategies for urban "regeneration" include the building of sports stadia, and the pursuit of mega-events, such as the Super Bowl. This paper will focus on the fact that the Super Bowl is designated a National Security Special Event (NSSE)—an event that entails a spatialized state of emergency. The Super Bowl, then, is an event that is both spectacle and emergency; it articulates two state practices that Giorgio Agamben discusses separately. Building upon Agamben, I argue that the neoliberal state relies upon enhanced police powers in its promotion of consumerism. Post-Fordist efforts to focus urban economies around consumption require a heightened role for the policing functions of the state to produce an aesthetic environment conducive to consumer behavior and that is insulated from potential disruption (including the disruptive potential of politics). Reflecting back upon Agamben, this paper suggests that insofar as the Super Bowl is a zone of both consumer spectacle and emergency, not all zones are merely zones of bare life. Segregative segmentation might be a spatial manifestation of neoliberal government. Moreover, the Super Bowl, as an instance of neoliberal urban governance, indicates that a spatialized emergency may be best understood not as an exception outside of law, but rather as a practice indicating an emergent legal formation holding the potential of becoming normalized. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The Indian case gives little consolation to those who train their guns against organized terrorism. No matter how many were jailed or hanged in the subcontinent the attacks never came to an end. Terrorists, apparently, come and go. Neither the policing of the authoritarian colonial state nor the rule of law of the independent Republic were able to effectively undermine activities that - seeing with the eyes of the state - are labeled terrorist. In analyzing India's lost and won battles it is more helpful not to start with a search for a definition that seeks to encompass terrorism in all its forms and usages. Different regions have suffered at different times in different ways: Terrorists, as a cluster concept, have been "sons of the soil" or crossed borders; they have assassinated individuals or managed vehement campaigns of violence, driven by a plethora of ethnic, political and ideological conflicts. The challenges in the management of internal security have been met by a set of national and state anti-terrorism laws. Under the restless desire of shedding the tag of "soft state", Indian legislators have empowered actors that are unlikely to use discretion cautiously and judicially. My paper deals with the operational effects as well as the legal ineffectiveness of India's anti-terrorism legislation. The social life of anti-terrorist laws is characterized by two trends. On the ground, in their local day-to-day life, these acts ensure a rise in detentions and fail to secure convictions. In the national political process, the systematic abuse of anti-terrorism laws is continuously challenged within a web of countervailing forces: regional governments, opposition parties, courts, media, citizens' rights-advocacy organizations as well as state-sponsored institutions and commissions. My arguments analyze the resulting rise and fall of anti-terrorism legislation in the context of horizontal and vertical separation of powers games. [ABSTRACT FROM AUTHOR]

This paper will examine how identify verification systems - such as the new UK National Identity Card Scheme - are increasingly being used by national governments for law enforcement purposes and to secure borders and regulate immigration. In particular, it focuses on the way in which these systems - often initially promoted as a means to streamlining government and improving the delivery of public services - are being co-opted into the general security and surveillance apparatus of the state, often in the absence of robust regulatory frameworks. In addition, it will examine how identification systems are being used to redefine our understanding of citizenship and draw questions of nationality and status into discussions about domestic crime and national security. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper addresses the contemporary proliferation of the public discourses and policies of 'security' and 'counter-terrorism'; their utilization and deployment of sex- and race- based fear-mongering; and the indelible effect of such imperialist tactics on sexual and racial equality. Working generally with Michel Foucault's and Giorgio Agamben's analytic framework of 'biopolitics', and specifically with Jasbir Puar's paradigm for theorizing race and sexuality within 'homonationalist' 'terrorist assemblages,' I consider how the imperialist production and management of fear operates in relation to identity politics, derived from distinctions between 'expendable' sub-human lives (stereotypically those of Arabic and Asian origin) and rights-endowed human lives worthy of state protection, security, freedom. These distinctions are played out in the state-authored discourses of 'justice' and of patriotic protectionism (of 'good patriots' and 'innocent civilians'), and enacted through "exceptional" laws and policies that have justified torture, indefinite detention, extraordinary rendition, and arbitrary deportations of those 'others' who are alleged to threaten 'our' peace and security. While these distinctions have drawn on --and reinforced-- familiar stereotypes about sexual and racial perversity (of 'others'), they have also worked to forge new configurations of queer identity politics within nationalist frameworks. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

My paper explores recent changes in Israel's border administration in the occupied West Bank. Specifically, it traces the recent shift from ad-hoc checkpoints to international terminals, examining how new technologies such as biometric cards present themselves as less arbitrary and thus as more humanitarian. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Throughout the contemporary strata of policing and security activities, previously discernible boundaries between the public and private spheres are increasingly indistinct. The domain of high policing - long associated with the preservation and augmentation of state interests by intelligence agencies - is no exception. Recent studies have demonstrated that this paradigm can no longer be either examined, or theorised, within an exclusively 'public' framework. The activities of a host of 'private' actors must now be incorporated alongside those of state security institutions, albeit with the latter remaining the more dominant force. Consideration of these 'newcomers' to the high policing terrain also entails much more than the burgeoning trend in outsourcing intelligence functions - particularly prevalent in the US - and necessitates a sharper focus upon the activities of transnational security consultancy firms, as well as the more shadowy world of economic espionage and competitive intelligence. Across this spectrum of high policing activity, the relationship between its public and private manifestations is multi-faceted and overwhelmingly opaque. By charting the diverse roles of these actors, this paper examines the complex patterns of convergence and divergence that characterise the contemporary high policing field. It demonstrates how the authorising auspices for these actors confer varying degrees of legitimacy and what Brodeur has termed 'symbolic power'. It further highlights how the dynamics of this public-private interface are also determined by the specific political context within which they are located, with specific attention being paid to high policing in transitional societies. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The events of September 11 changed many things. The expectation of increased security for the American public coupled with the concern of a loss of civil liberties and privacy. Biometric technology was at the center of this debate. Thrust into limelight with highly controversial legislative mandates, such as the USA PATRIOT Act and the Enhanced Border Security and Visa Reform Act, the American public was introduced to a technology which was simultaneously positioning itself to meet escalating demands for the War on Terror while fending off the growing concerns of surveillance techniques. Privacy advocates soon latched onto the Orwellian rhetoric of "Big brother" and began attacking biometric technology as the actualization of the Benthamite Panopitcon. Thus, the political values associated with the war on terror both favored and encumbered the biometric community. Politicians were searching for a solution to identify potential terrorists, and biometric technology seemed a panacea but from the perspective of critics the technology presented a threat to privacy and civil liberties. Meanwhile, the biometrics community was struggling with the usual host of problems associated with bringing a technology to maturity but doing so in warp speed. This paper incorporates NSF funded research to explore societal acceptance of biometric technology through the lens of September 11. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

September 11, and President Bush's vigorous response to it, has raised fundamental questions about democratic government, the rule of law, and the proper balance between civil liberties and security interests in a time of 'war'. Much of the discussion that has followed has assumed the validity of certain dichotomies - often posed as existing in tension with one another: war/crime, 'before' (9/11)/'after', law's silence during wartime/law's presence, security/freedom, speed/deliberation, rule/exception. Moreover, both scholarly and popular engagements with this issue have usually been framed by normative legal arguments about what the Constitution allows (or prohibits) in a time of war, and with the fundamental status of the rule of law. I call into question both of these tendencies; that is, this paper takes a somewhat different tack, urging that we view many of the actions taken by the Bush Administration in its war on terror as further developments of an approach to government that emerged in the 1980s, achieving form and visibility with the so-called 'war on drugs'. In other words, the war on terror must be characterized, not as a temporary (exceptional) moment from which we can return to a more 'normal' state, but as a longer term recasting of American governance that must be conceptualized accordingly. To do so, I focus on the Bush Administration's 'paradigm of prevention,' situating my analysis within contemporary work on risk and governmentality. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper draws on recent reports and fieldwork on Timor Leste following the events of April/May 2006. It examines the role of the UN in its new mission (UNMIT) against the history of UN involvement in Timor Leste. It then considers the prospects for successful nation-building, with a focus on security sector reform in the area of policing. The limits of a purely technical approach to capacity-building are considered in a country deeply divided politically and underdeveloped by global standards. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Lawyers in national security strategy face a perennial dilemma. On the one hand, a doctrinaire absolutism about legal commands cannot accommodate the fluidity of foreign policy and provisions for the national defense. However, disclaiming rigidity about the letter of the law does not free lawyers and other policymakers in the national security realm from the need to uphold core legal principles and preserve the integrity of legal institutions. Too often, lawyers in national security crises have skewed this calculus toward expediency, without paying sufficient attention to abiding values. The risk of imbalance is especially acute where, as in the case of Guantanamo, policies entail detention without trial. American history has shown that regimes of mass detention undermine the legal system's values, along with the ethics of participating government lawyers. This paper offers guidance on when lawyers confronting national security crises can recommend action that appears to contravene existing legal norms. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

"Protect Our Children, Secure Our Borders!" is become the rallying cry adopted by Mothers Against Illegal Aliens, the women's counterpart to the Minutemen. Joining other anti-immigration organizations, MAIA has honed their message around traditional mothering discourse. Calling for mothers to take action to protect their families and children, they argue that immigration is a direct threat to their children. Along with their mission statement "to bring awareness to and educate the LEGAL American families whose children are the silent victims of this Invasion of Illegal Aliens," and "to protect their children's future." Primary targets of MAIA are the US born babies and children of immigrants. Claiming the 14th amendment only covers babies born to US citizens, they refer to babies born to immigrant mothers in the US as "anchor babies." In the following paper, I will analyze MAIA homeland security discourse that is used to gain support for their movement and used to shield themselves from racist allegations against Mexican women and children. I analyze the arguments, images, and sound bites used to identify immigrant mothers and their children as economic and security threats to US families and their children. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Anti-terrorist campaigns took off across Europe and North America, in the aftermath of 9/11.The Canadian federal government has implemented an Anti-terrorist Act that not only amended the National Defense Act, the Canada Evidence Act, the Criminal Code and Human Rights Code but also implemented a New Immigration and Refugee Protection Act in 2001. Under notions of border insecurity and internal terrorist threats, the new immigration act has legislated increased detention and deportation for various types of immigrants residing within Canada. This paper will critically examine how this new immigration law has constituted and re-constituted the 'deportable subject' (Chan, 2005)and will interrogate forms of governmentality that have created racialized gendered legal spaces within which human rights laws no longer apply, but allow for coercive practices to remove unwanted and undesirable immigrants. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The attainment of security and the protection of human rights are not necessarily antithetical, either as a matter of fact or principle. Nevertheless, since 9/11 the words security and human rights have, in the collective imagination, now come to connote an almost insuperable opposition. Anyone who engages in the debate over security and human rights is almost immediately confronted by this dichotomy, tacit in the political call for a 'new balance' and explicit in newspaper editorials calling for the retreat from human rights. This paper will explore the question of whether this dictomy is an unavoidable one, and considers various ways in which it might be possible to reconcile the growing demand for security with a commitment to fundamental rights. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Policing in Northern Ireland has always been deeply problematic and linked to the dynamics of conflict in the region during the course of the past thirty years. The Independent Commission on Policing (ICP) was established under the terms of a negotiated constitutional settlement in Northern Ireland (The Belfast Agreement, 1998) to make recommendations for the reform of the nature, character and structure of policing in the region. The paper suggests that while the report the ICP provides a blueprint for police reform that has an international resonance it can also be seen as a bold attempt to engage more elliptically with contemporary debates in security governance that point to the increasingly fragmented nature of late-modern policing, and a weakening of state sovereignty in relation to how security is provided for and governed. I argue that in spite of the networked approach postulated by the ICP the public police continue to enjoy a pre-eminent role in the provision of security in Northern Ireland. Furthermore, there is little evidence of any significant weakening of state capacity in relation to the overall 'steering' and 'rowing' of security governance. The discussion concludes by suggesting that aspects of policing and security in Northern Ireland, are likely to provide the template for the norm in the context of global instability and the 'war on terror'. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper undertakes a critical analysis of the "securutiy certificate" process under the Canadian "Immigration and Refugee Protection Act" (IRPA).According to section 77 of the IRPA, the Minister, having reasonble grounds to believe that a permanent resident or a foreign national is inadmissible to Canada because he/she is a threat to national security, shall sign a security certificate. Such individuals need not have been charged or convicted of an international crime.The certificate is referred to a Federal Court judge, where its grounds for legitimacy are not substantially reviewed, but simply determined to have been reasonably or unreasonably issued.Refugee claimants and landed immigrants declared to be a danger to national security are arrested and detained indefinitely without bail. Detainees and their lawyers are denied the right to see the evidence used in the issuance of the certificate, or the right to be tried under normal procedures of Canadian criminal law.Beneath this fascade of "national security" and "war on terror" is the aspiration to legitimize raw or virtually unrestricted state power in the eyes of the public. Hence the utilization of the judiciary.It will be argued that courts are ill-suited for this task. This is becuase the security certificate process deals with future considerations of policy and strategy; considerations that are replete with utilitarian calculations. Courts, on the other hand, deal with issues of justice; and justice, in my view, deals with backward-looking considerations. Furthermore, the process severely compromizes the rule of law.By way of conclusion, "inter-alia", it will be contended that this pursuit for legitimacy unfairly drags the judiciary into an arena tha may eventually chip away at the already shaky confidence the public has in our courts. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

It is possible to talk of the present as an 'age of politics.' This age, marked by war, terror and sovereignty, suggests an eclipse of law; human rights by national security, constitutionality by the exception. However, to talk of an ascendant politics and descendant law is to ignore two essential characteristics of the present. First, the intimacy of law and war, and second the technological 'terrain' on which the age of politics is being fought. One feature of the present has been the development of an identifiable field of law and popular culture. It is not a coincidence that this field, with its growing focus on speculative fiction, has taken root in the present. Indeed, it is the fantasy and science fiction genres, with their imagining of worlds, of peoples, of wars and of machines, that brings into focused the missed relation of law to war and the technological terrain of the age of politics.This paper examines the recently reinvented science fiction television series Battlestar Galactica (2003-). This series brutally strips the age of politics into constitute elements, the intimacy of law and war, and its technological horizon. In presenting these characteristics, the series reveals a further fundamental concern with time. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The morning of September 11, 2001 changed the way a lot of American society was structured. Many laws, regulations, and norms were altered in the aftermath and extensive studies were commissioned to make recommendations as to how to deal with potential future disasters. Many of these studies failed to take into account the actual events of that day however. The recommendations they made were usually based off policy recommendations made prior to 9/11. By examining data collected from officers involved with the events in and around the World Trade Centers on the morning of September 11 this paper examines what effects a disaster of this magnitude has on how street level policing is carried out. My analysis combines a structural account and a detailed analysis of the reports filed by the officers themselves to better understand what happened to traditional police command structures and how they were altered to conform to the situation as it happened. ..PAT.-Conference Proceeding [ABSTRACT FROM AUTHOR]

To understand the emerging security regimes of 21st century North America, it is instructive to revisit US constitutional case law from the 1970s. A series of US Supreme Court Cases -- most notably Almeida-Sanchez v. US (1973), US v. Brignoni-Ponce (1975), and US v. Martinez-Fuerte (1976) -- were more than merely footnotes in the evolution of US 4th Amendment jurisprudence from the articulable suspicion of Terry v. Ohio in 1968 to US v. Sokolow's drug courier profile in 1989. Indeed, it was these 1970s cases that established within the US "homeland" the roving international borders and the ethno-racial security risk profiles that have become central to contemporary management of risky bodies in legally liminal spaces. These are modes of spacing in and spacing out that have become so ubiquitous that they pass all but unremarked. One goal here is to recall to visibility a recent legal history that has (re)naturalized formerly alien, exotic tactics of international security and rationales of state so that they now appear native to the political ecology of the domestic interior of the territorial state. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Despite the rapid growth and recognition of individual human rights within the last sixty years, the rights of noncitizens in the immigration context has received limited scholarly attention. International law generally treats the regulation of immigration as a domestic matter. Consequently, it is left to states to decide whether or not to judicially protect noncitizens' fundamental rights in the deportation context. The jurisprudence of the European Court of Human Rights ("ECtHR") is starting to reverse this practice by applying contemporary conceptions of state sovereignty to indirectly limit states' immigration authority. Such limitations are not, however, emerging in the United States. Courts in the United States and Europe recognize the existence of fundamental rights for noncitizens within the immigration context, yet these states entrust the protection of these rights to different institutions. Utilizing a categorical approach, based on the plenary power doctrine, United States courts defer to the judgment of the executive and legislative branches. Yet neither the executive branch nor the legislative branch has an adjudicative mechanism for evaluating individualized substantive constitutional challenges. The ECtHR on the other hand utilizes an ad hoc approach, reviewing each substantive European Convention on Human Rights challenge to a deportation decision and conducting a proportionality analysis. The different approaches being utilized in Europe and the United States provides a basis for examining how best to protect public safety, national security, and national cohesion in this growing age of migration. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Administrative agencies, as experts on matters of public policy, are accorded great deference by Article III courts on matters of rule-making and adjudication. But in certain exceptional circumstances, courts refuse to defer. For instance, when agency adjudicators fail to implement their own procedures, Article III courts take a more activist role. This explains a number of recent decisions within national security, including Boumediene v. Bush, in which the Supreme Court extended constitutional habeas protections to detainees at Guantanamo Bay. Boumediene is puzzling because the Court rejected a remedy created by Congress and the Executive in response to (and arguably in compliance with) the Court's prior enemy-combatant decisions, notably Hamdi v. Rumsfeld and Hamdan v. Rumsfeld. But Boumediene can be explained as a judicial response to flawed implementation of standards and procedures by the Guantanamo tribunals, which failed to command Article III deference. Adjudicatory integrity explains Boumediene and a host of other cases in which agencies fail to properly implement their own procedures. In those cases, courts become more actively involved despite heightened standards of review and jurisdiction-limiting provisions imposed by Congress. While this idea has not been the subject of much doctrinal development, it has great intuitive appeal; after all, judicial administration is centrally and squarely a matter of the courts' expertise. Thus, as exemplified by Boumediene, in cases of flawed judging, Article III courts are often willing to go well beyond their limited judicial mandate to right an agency wrong, a point that holds true generally within administrative law. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Racial profiling and discrimination more broadly are often assumed to be unconstitutional and illegal. This is not always the case, however. For the judicial branch, racial discrimination is allowable if found to serve a compelling government interest, following Adarand Constructors Inc. v. Pena (1995). From the executive branch, the Civil Rights Division of the U.S. Department of Justice issued a "Guidance Regarding the Use of Race" which generally forbids racial profiling, but exempts national security practices. Immigration and Customs Enforcement (ICE) attempts to protect the United States from dangerous immigrants partly by means of a special registration system (NSEERS), which subjects certain categories of people to heightened scrutiny. Technically this scrutiny applies to people on the basis of nationality, although the nationalities which trigger heightened scrutiny overlap overwhelmingly with ethnic and religious categories stereotyped as terrorist. The Supreme Court in Reno v. American-Arab Anti-Discrimination Committee (1999) ruled that federal courts have no jurisdiction to consider selective prosecution claims raised by resident aliens facing deportation, refusing to review discretionary executive decisions which amount to unconstitutional discrimination in removal proceedings. Thus racial profiling and related practices are simultaneously condemned and justified, with some of the most interesting and problematic tensions arising with respect to attempts to manage the presence of non-citizens in U.S. territory. There is much need to identify and analyze such practices of exclusion, and the policies and rulings which constitute their institutional scaffolding, to illuminate this controversial and consequential intersection of law, place and power. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

One focus of this presentation is on how these communities have been affected socially, culturally, economically and environmentally by the North American Free Trade Agreement (NAFTA). Also examined will be the influence of the War on Terror, institutionalized via the Homeland Security Act of 2002, on tribal familial, social and economic bonds. Selected instances of when, where, and how NAFTA and the Homeland Security Act of 2002 have affected Indian, Inuit and Metis communities in Canada will be reviewed. Note will be taken of the resources these communities have mobilized to contend with NAFTA and the current border security measures that interfere with free access by tribal members to relatives on reserves and reservations that straddle the Canadian-U.S. border. Instances of where there has been some success in moderating the impact of either NAFTA or the border security measures on these communities will also be reviewed. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Free movement of individuals is one of the fundamental freedoms recognized by the international community. Ideally - it applies to both citizens and non-citizens. Yet, in today's world however, free movement is heavily restricted. Restrictions are imposed on immigration; free travel within the state is often more limited for minors; and penal law infringes upon this right as it applies to convicted felons. The laws of a nation may assert a guarantee of this right, but restrictions are often declared due to reason of state security or national interests. Restrictions on free movement of individuals became an acute policy issue in the early 21th century due to two international phenomena. The first concerns mass immigration from third world countries, into the affluent countries of Europe and North America. That immigration is changing the social and demographic makeup of the host countries. The second phenomenon (which is closely related to the first), is what is becoming a permanent threat of terrorist groups, who on their part, try to blend in, using the immigrant communities of the host states as a base for their clandestine activities. The proposed asks, what are the boundaries of the right to free movement? What limitations can be justified on reasons of state security? ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

After the terrorist attacks of September 11, 2001 in the United States, the Canadian government introduced legislation that expanded the authority of several national security agencies. It also adopted new practices to deal with terrorism and created new departments to manage expanding security processes. Given the pressure to develop a rapid response, there were little time and data available to fully assess how these measures might impact human rights protections that are constitutionally enshrined. In 2006, the Canadian Human Rights Commission, charged with the administration of the Canadian Human Rights Act, published a report that set the framework for a "National Security and Human Rights Initiative." The report outlined a series of recommendations for research with the intent of developing non-discriminatory or least-discriminatory national security practices. We review the dilemmas encountered when national security considerations must be made against the backdrop of human rights principles, and argue that the problem should not be conceptualized in terms of striking a balance but more in terms of finding ways to ensure national security while protecting human rights. We then outline research the Commission has undertaken to facilitate the emergence of good practices in the field of national security. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Since September 11, 2001, the Bush administration has repeatedly invoked the state secrets privilege in cases challenging executive conduct in the war on terror, arguing that the "very subject matter" of these cases must be kept secret to protect national security. The executive's recent assertion of the privilege differs from past practice, in that it is seeking dismissal, pre-discovery, of all cases challenging the legality of specific executive branch programs, rather than asking for limits on discovery in individual cases. This essay contends that the executive's assertion of the privilege is therefore akin to a claim that the courts lack jurisdiction to hear and decide such cases. The executive's recent invocation of the privilege raises a concern that has been largely overlooked thus far - the impact of the privilege on legislative power to assign jurisdiction to the federal courts. The U.S. Constitution grants to Congress, and not the President, near-plenary authority to craft federal jurisdiction. Furthermore, when Congress assigns federal courts to hear cases challenging the legality of executive action, it is enlisting the judiciary as its partner in policing executive conduct. The executive's recent use of the privilege disrupts that constitutional collaboration, leaving the executive potentially unchecked by any branch of government. The essay then discusses how courts should incorporate the concern for legislative power and executive oversight into its analysis of the state secrets privilege. It concludes by advocating that courts refuse to dismiss these cases until Congress has indicated a willingness to take back the task of executive oversight that it had delegated to the courts through the original jurisdictional grant. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Initially environment and its protection is not an integral part of security policy. The widened security term, which is the basis of the german foreign policy, widened the traditional security concept by themes as environment (amongst other themes). Environmental associations were delighted -hoping that this change would put environment higher on the governmental priority list. These hopes have vanished. By wideninig the security concept the state became the centre of interest and action - military actions to defend from possible threats come to the fore. Therefore many interesting working stategies as well as concepts of non-governmental organisations are 'lost' for environmental protection. This means: The widened security concept did environment no good - options of action diminished. Still- how can environmental associations change their strategie and take advantage of the changed priorities? ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

U.S. domestic law enacted to enable the enforcement of international treaty obligations prohibiting torture has consistently evaded criminalizing some practices properly denominated torture. These practices have been preserved for use in national security interrogations. U.S. legislation and policy on torture of the Global War on Terrorism era therefore represents continuity not rupture, although the evasive objectives are less artfully concealed. The law and practice of the United States, and the practice if not the law of other democratic powers, never yielded to the ideals embodied in the Convention Against Torture (CAT) and other post-WWII expressions of the supposed universal legal prohibition of torture. The rhetorical and legal ploy at the heart of the evasion is defining torture down; i.e., torture light" (or torture lite or touchless torture or psychological torture) is classified as (mere) inhuman and degrading treatment, which, while prohibited by international treaties, is not required by them to be subject to the serious criminal penalties prescribed for torture. The author traces the history of U.S. domestic legislation and policy on torture from the ratification of the CAT in 1994 to the Military Commissions Act of 2006, and also examines some episodes in the practice of the U.S. and some other democracies during the post-WWII period. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

In contemporary debates about political accountability and national security, the standard account assumes that bifurcating decision-making authority over the use of force among various political agents will produce unambiguous deliberative effects because it channels the war-making decision through multiple political actors with varying points of view. Contrary to the received wisdom, this experimental Article advances the empirically plausible but counter-intuitive assumption that diffusion of political accountability regarding the use of force might actually have a perverse effect. Thus, rather than create a drag effect that minimizes the impulse to rush into imprudent wars, bifurcating decision-making such as requiring congressional authorization for the use of force might actually do the opposite: because such authorization allows the President to spread the potential political costs of military failure or stalemate to other elected officials, it will lead the President to select into more high risk wars than he would otherwise choose if he were acting unilaterally. In other words, since congressional authorization acts as a political "insurance policy" that partially protects the President against the possible political fallout from failed military engagements, such authorization is more likely to make the President willing to engage in wars where the expected outcome is uncertain. More importantly, not only is the President likely to use congressional authorization as a hedge against the loss of political dominance when a war goes bad, he is also likely to use it to prevent the political opposition from exploiting the electoral vulnerabilities of members of Congress from his own party. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Of all the American policymakers who helped create the postwar international security order, none loom larger than Dean Acheson. As the principal architect of the Truman Doctrine, the Marshall Plan, and NATO, he established the central pillars of American national security policy for more than a generation. Yet we know next to nothing about the formative influences on his thought. My project identifies the assumptions underlying his policy perspectives by focusing on his professional background—as a New Deal lawyer immersed in the political and ideological struggles of the 1920's and the Great Depression. Understanding the complex and subtle connections between law and world politics can yield important insights into a critical period in the history of American foreign relations. It would also bring together American legal history, the history of American foreign relations, and international theory. Acheson, I argue, was one of the leaders of the legal "Realist" movement that stressed the interconnection of law and politics, and thus the deep connection of law and power. Law did not substitute for power but rather reflected it. His diplomacy stressed similar themes and thereby rejected classical legal premises. It relied heavily on balance-of-power conceptions and remained indifferent, if not hostile, to international legal institutions. Acheson's career, then, suggests that "legal Realism" and "foreign policy Realism" are not simply matters of linguistic fortuity. Instead, taken together they point to a deeper understanding of "realism" in 20th century thought. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The Report of the 9/11 Commission is, by common consensus, a remarkable achievement. With a relatively compelling narrative, it manages among other things to convey an immense amount of historical and analytical information relating to U.S. counterterrorism policy prior to 9/11. One thread of that narrative, easily overlooked, concerns the role of law as a policy restraint. A close reading of the report reveals numerous instances in which senior national security decisionmakers refrained from particular actions at least in part out of a perception that the action would be illegal. These episodes shed light on the manner in which law and the perception of law actually function as restraints on policy even in this high-stakes context. ..PAT.-Conference Proceeding [ABSTRACT FROM AUTHOR]

Following September 11, 2001, the American public has been subjected to an almost continuous stream of threatening information with respect to terrorism. In response to the attacks, Congress authorized a significant broadening of the U.S. government's law enforcement capabilities through the adoption of the Patriot Act. The Act has resulted in much debate among those in the legal community and beyond regarding the effect of the new powers upon the scope of American freedoms. Yet, during the 'War on Terror' has the judicial branch, the main interpreter of American civil liberties, remained silent? This project examines the contours of Supreme Court and lower federal court decision-making in eras of prolonged crisis in a quantitative manner through a statistical investigation of linguistic indicators of threat, judicial restraint, freedom, retribution, patriotism and inter-branch cooperation within judicial decisions and other texts. The use of such linguistic indices represents an innovation within judicial politics because the method allows for the quantitative analysis of the language of opinions, oral arguments, briefs and other texts, adding a vital component to previous studies that largely employ quantitative analyses of justice vote choice alone. The 'scores' yielded through the analysis of the post-9/11 Supreme Court's decisions, both pertaining to national security as well as other issues, will be compared with its predecessor Courts, both in war-time and in peace. Further, such linguistic indicators will be compared with 'scores' given to the American public, the press and the executive branch through quantitative analysis of texts from these sources. ..PAT.-Conference Proceeding [ABSTRACT FROM AUTHOR]