Robert Chesney's research while affiliated with University of Texas at Austin and other places
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Publications (21)
Computer Network Operations (“CNOs”) famously give rise to a number of international law complications, and scholars have duly taken note. But CNOs also raise important questions under the heading of U.S. domestic law, particularly when the government does not intend for its sponsoring role to be apparent or acknowledged. This brief essay, which bu...
One of the most striking features of the post-9/11 era has been the convergence of military and intelligence operations. Nothing illustrates the trend better than the CIA‟s emergence as a veritable combatant command in the conflict with al Qaeda, though it manifests as well through the expansion of clandestine special forces activities, joint CIA-s...
In January 2010, the Governance Studies department at Brookings released a paper entitled “The Emerging Law of Detention: The Guantánamo Habeas Cases as Lawmaking.” (http://ssrn.com/abstract=1540601) In that paper, two of the present authors sought to describe the enormous diversity of opinion among the lower court judges to whom the inactivity of...
Anwar al-Awlaki is a dual Yemeni-American citizen who has emerged in recent years as a leading English-language proponent of violent jihad, including explicit calls for the indiscriminate murder of Americans. According to the US government, moreover, he also has taken on an operational leadership role with the organization al Qaeda in the Arabian P...
We lack consensus regarding who lawfully may be held in military custody in the contexts that matter most to U.S. national security today - i.e., counter-terrorism and counterinsurgency. More to the point, federal judges lack consensus on this question. They have grappled with it periodically since 2002, and for the past three years have dealt with...
The post-9/11 debate regarding the law and policy of military detention is shot through with flawed assumptions. It tends to assume, for example, that if the factual and legal predicates for using military detention without criminal charge can be established in the first instance, then for good or ill that model can be sustained over the long term....
President Obama’s decision not to seek additional legislative authority for detentions at Guantánamo Bay, Cuba — combined with Congress’s lack of interest in the task — means that, for good or for ill, judges through their exercise of habeas jurisdiction are writing the substantive and procedural rules governing military detention of terrorist susp...
U.S. District Court for the District of Columbia: Boumediene V. Bush - Volume 48 Issue 1 - Robert M. Chesney
In the aftermath of the 2008 election, change is in the air with respect to counterterrorism law and policy. The Obama administration almost certainly will terminate the military commission system, and it likely will take steps at least to reduce reliance on the underlying practice of long-term military detention. Against this backdrop, the debate...
Six years after the 9/11 attacks, U.S. policy concerning the detention of alleged terrorists remains legally uncertain and politically contested. Neither the criminal nor the military model in its traditional guise can easily meet the central legal challenge of modern terrorism: the legitimate preventive incapacitation of uniformless terrorists who...
The state secrets privilege has played a central role in the Justice Department's response to civil litigation arising out of post-9/11 counterterrorism policies, culminating in a controversial decision by Judge T.S. Ellis concerning a lawsuit brought by a German citizen--Khaled El-Masri--whom the United States allegedly had rendered (by mistake) f...
How early does criminal liability attach along the continuum between planning and committing a terrorist act? And in light of the answer to that question, have we struck an appropriate balance between the benefits of prevention and the off-setting costs in terms of a potentially-increased rate of false-positives and foregone opportunities to gather...
This chapter, part of an edited volume on the changing role of the American prosecutor, discusses the manner in which the Justice Department has implemented the goal of terrorism prevention in the years since 9/11. It will be of interest primarily to those who seek a relatively brief introduction to the various methods by which federal prosecutors...
Men confronted with ambiguous treaty language, do judges defer to the interpretation preferred by the executive branch? Should they do so? The descriptive and normative issues associated with judicial deference to executive-branch treaty interpretations are pressing, Particularly in light of the impact U.S. treaty obligations might have on policies...
September 11 gave rise to a number of new and significant issues, many of which present serious challenges for federal criminal law enforcement. In this Article, Professor Robert Chesney explores how the Department of Justice has used terrorism-support laws to respond to these challenges. In Part I, he describes the evolution of these laws from the...
Philip Heymann's most recent contribution to the post-9/11 policy debate, Terrorism, Freedom, and Security: Winning without War, endorses a nuanced approach to counterterrorism policy emphasizing the use of cost-benefit analysis with respect to both the short-term and long-term impacts of particular policy choices. Arguing from this perspective, He...
This article contends that the first significant post-1789 clash between political liberties and the demands of security occurred in 1794, when Federalists made a concerted effort to delegitimize organized, non-electoral political dissent as practiced by the so-called Democratic-Republican Societies. The events associated with this effort provided...
This symposium article examines two critiques associated with post-9/11 criminal prosecutions in terrorism-related cases. The data-reliability critique attacks the reliability of the statistics reported by the Justice Department in connection with such cases, while the soft-sentence critique suggests that claims of success in such cases might be ov...
This article provides a comprehensive review of legal issues--constitutional, statutory, regulatory, and international (IHRL and IHL)--that arise when a noncitizen held as an enemy combatant at Guantanamo requests judicial oversight of a decision to transfer that person back to their country of citizenship (a request that has been made on numerous...
Citations
... En un primer momento, la Administración estadounidense negó que el hábeas corpus y otros derechos constitucionales protegieran a los detenidos en Guantánamo, ya que alegaron que como extranjeros no-residentes no estaban sujetos a la Constitución. Este argumento se basaba en el hecho de que la base naval de Guantánamo, que se encuentra en territorio cedido por Cuba a Estados Unidos en 1903 7 , está localizada fuera de la soberanía de Estados Unidos y, por tanto, se esgrimía que el derecho estadounidense (incluida la Constitución) no era de aplicación en ese territorio (Chesney, 2008). Los tribunales estadounidenses tampoco tendrían, según este razonamiento, jurisdicción para juzgar las demandas interpuestas por detenidos en Guantánamo (Duffy, 2005). ...
... As briefly mentioned above, that is what some infamous American Muslims have done post-9/11. Former American Muslim preacher Anwar al-Awlakī left the United States altogether, and was eventually killed by American military forces in Yemen, raising the complex constitutional question over whether or not the government has the authority to assassinate a U.S. person deemed an enemy of the state (Chesney 2010). The global reach of American jurisdiction is highlighted by both the non-violent but threatening Treasury Department encouragement of cautiousness for U.S. persons traveling to Mashhad and the assassination of al-Awlakī, although at first blush they may seem like radically different issues. ...
... The divide between military and paramilitary activities from an operational and legal point of view, however, is increasingly becoming blurry given advances in technology and changes in the character of war. 783 The increasing interconnectivity of individuals, devices, and systems, however, opens up remarkable new possibilities for strategic sabotage. In fact, in the era of Great Power Competition, arguably most strategic sabotage takes the form of non-kinetic activities through the cyber domain. ...
Reference: Conceptualizing Strategic Sabotage
... [FN38] Within the paradigm of an international armed conflict, the detention powers of the state are 'sweeping.' [FN39] However, the Hamdan court ruled that despite the *117 President's powers to create such Commissions to determine the detention and prosecution of unlawful belligerents, his power is not 'sweeping.' [FN40] The court made reference to the laws of war through the sublime invocation of section 821 of the U.C.M.J., namely mandating compliance with common Article 3 of the Geneva Conventions. ...
... But the war model alone does not present the most effective model to tackle terrorism, because it ignores root causes. Notably, the war model has evolved towards a more criminal justice approach (Campbell and Campbell, 2010;Chesney and Goldsmith, 2008). ...
... For example, much of the discussion about counterterrorism has centred on whether the better approach is to follow what has been called the war model, which sees terrorism as a national security threat to be fought using military and intelligence capabilities; a criminal justice model, which treats terrorism as a criminal act; or a reconciliatory model, which sees terrorism as a political problem (Clutterbuck, 2004;Crelinsten & Schmid, 1992;Perliger, 2012;Rees & Aldrich, 2005). Since the 9/11 attacks, the USA is considered to have emphasised the war model, which naturally privileges the role of federal-level capabilities, including military force (Chesney, 2005;Kurtulus, 2012;Shapiro & Byman, 2006). But even much of the work examining criminal justice or reconciliatory approaches tends to focus on national-and international-level solutions (Clutterbuck, 2004;Perliger, Hasisi, & Pedahzur, 2009;Sederberg, 1995). ...
... The authorities also confiscated materials that could be used to make explosives, which the defendant claimed were left over from fireworks he had made and set off earlier in the year. 5 An inchoate crime (attempted terrorism) was chosen to offer a timely empirical contribution to current legal debates about the government's expanding use of inchoate criminal liability in the context of terrorism prevention (Bejesky 2015;Chesney 2007). The defendant was charged with bank fraud and with attempted terrorism. ...
... While the importance of these narrations must not be downplayed, they fail to give a systematic, nomothetic analysis of what is occurring at Guantánamo. The academic work, on the other hand, focuses almost exclusively on the legal status of Guantánamo (Steyn 2004;Amann 2004;Chesney 2006), sometimes combined with medical (Bloche and Marks 2005;Miles 2007) or geographic-philosophical (Gregory 2006) aspects, but with little quantitative social scientific work being produced to date. So far, the only statistics-based analyses were presented by Denbeaux, Denbeaux, and Gregorek (2006a, 2006b, 2006c and Denbeaux et al. (2012). ...
... Future studies should incorporate other types of domestic terror, such as Far Left and single-issue terrorists, to determine if there is a continuum of proactive political environment amongst all of the different typologies. In addition, there is value in dissecting the efficacy of the prosecutorial approach between inchoate offences and those crimes that have already been committed, and determining what percentage of cases fall within each category of offence; this too gives evidence of a preemptive approach and diffused prevention strategies (Chesney, 2005;Chesney, 2007). Inclusion of prosecutorial strategies and charges in lower-level courts can add necessary context to how the justice system addresses the threat of terror more holistically. ...
... Future studies should incorporate other types of domestic terror, such as Far Left and single-issue terrorists, to determine if there is a continuum of proactive political environment amongst all of the different typologies. In addition, there is value in dissecting the efficacy of the prosecutorial approach between inchoate offences and those crimes that have already been committed, and determining what percentage of cases fall within each category of offence; this too gives evidence of a preemptive approach and diffused prevention strategies (Chesney, 2005;Chesney, 2007). Inclusion of prosecutorial strategies and charges in lower-level courts can add necessary context to how the justice system addresses the threat of terror more holistically. ...
