Law and Public Policy

Emerging Trends in Modern Warfare Conference

Emerging Trends in Modern Warfare Conference



The Emerging Trends in Modern Warfare conference will consist of two panels discussing different changes that are happening in the ways the United States military operates. The first panel focuses on the practical operational considerations that are necessary when people from the military, law enforcement, and intelligence communities work together and how this convergence is actually working in the field. The second panel focuses on the Constitutional, International Humanitarian Law, and Law of Armed Conflict issues that arise when these components operate together overseas.



Sept. 21, 2012 from 9 a.m. to 3 p.m. Registration begins at 8:30 a.m.


Seminar rooms 4 and 5 (S-4 and S-5). University of the Pacific, McGeorge School of Law 3200 Fifth Ave. Sacramento, CA 95817 Map & Directions


  • General Admission — $20
  • MCLE Credit (Pacific McGeorge Alumni) — $25
  • MCLE Credit (non-Alumni) — $40
  • Students and Pacific McGeorge Faculty — Free
  • Register & Pay


For more information, please call 916.739.7138 or send an email to


8:30 to 9 a.m. Breakfast & Registration
9:15 a.m. to 9:30 a.m. Opening Remarks
9:30 a.m. to 11:30 a.m Panel 1: The Operational Convergence Between the Military, the Intelligence Community, and Law Enforcement

  • Herb Brown, Special Agent in Charge, Federal Bureau of Investigation
  • Dana Dyson, Deputy Chief, CIA Office of General Counsel’s Operations Division
  • James Schmidli, Deputy General Counsel for Operations, Defense Intelligence Agency
11:30 a.m. to 12:30 p.m. Lunch
12:45 p.m. to 2:45 p.m. Panel 2: Constitutional and International Legal Challenges Related to Modern Warfare Tactics, Technology, and Practices

  • Professor John Sims, University of the Pacific, McGeorge School of Law
  • Ms. Anne Quintin, International Committee of the Red Cross
  • Professor Gregory McNeal, Pepperdine University School of Law
2:45 p.m. to 3 p.m. Closing Remarks


Law and Public Policy

“Kill Capture”: A live chat with PBS’ Frontline

PBS Frontline Kill Capture Afghanistan.png

“Kill Capture”: A live chat with PBS’ Frontline:  Tonight, PBS Frontline is airing ‘Kill/Capture,’ a six-month investigation into the U.S. military’s program of targeted killings in Afghanistan. The military says these raids have taken some 12,000 insurgents off the battlefields of Afghanistan over the last year, and represent a crucial part of the U.S. strategy in the country. Afghan government officials, Afghan communities, and human rights groups, on the other hand, have objected to the raids on the grounds that they alienate the local population and are unduly harsh. The question is: will the kill/capture missions help end the war in Afghanistan?

(Via The AfPak Channel.)

Law and Public Policy

Pocket Litter, Intel and the Ground Operation

Beyond confirming that Bin Laden was actually the person killed in Abottabad, what is the significance of troops being on the ground to conduct the Bin Laden Operation?  Can their presence lead us to the new #1 in al Qaeda, Ayman al-Zawahiri?

In the coming days we will likely hear about the gathering of “pocket litter” and other exploitable intelligence and there will probably be some speculation about where that intelligence may lead us.  Given that the U.S. has surveilled the Bin Laden compound for a few months, we likely know quite a bit about the comings and goings of couriers and others who may lead us to Zawahiri.  Moreover, unless this operation was time sensitive (which it doesn’t sound like) we can expect that U.S. forces would not have conducted the operation without already planning for the next operation — the one leading to Zawahiri.  Of course, if we knew where Zawahiri was we would have conducted simultaneous operations.  The fact that we didn’t likely means that we were hoping to exploit intelligence to be found inside the Bin Laden compound.  The value of that intelligence gathered on the objective will determine whether Zawahiri’s days are best measured in weeks, months, or longer.

Cross Posted at OJ

Law and Public Policy

ABA National Security Law Report: Winter 2010 Issue

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The Winter 2010 Issue of the ABA National Security Law Report, the flagship publication of the Standing Committee on Law and National Security is now available on-line here.

Here’s a look at the Table of Contents:

In The Problem With Law Avoidance, Geoffrey S. Corn (South Texas) discusses the controversy associated with defining what role international law plays in constraining U.S. counterterrorism activities. Laurie Blank (Emory Law) responds.

Laurie Blank argues that In Counterterrorism, The Law of War is a Key Source of Law for the Courts while Geoff Corn responds, offering additional thoughts on the history of how courts for over 60 years.

Tung Yin reviews Alan Dershowitz’s Is There A Right to Remain Silent? Coercive Interrogation and the Fifth Amendment After 9/11.

General John D. Altenburg reviews Homeland Security: Legal and Policy Issues.

Adrian Snead, Redefining Fourth Amendment Rights in the Digital Age: Suspicionless Border Searches of Electronic Data Storage Devices.

Since 1991, the flagship of the Standing Committee’s publications program has been the National Security Law Report. The Report is regularly distributed to attorneys, government officials, professors, and legal scholars. It includes: reports of committee conferences, pertinent law and national security updates, recent cases, book reviews, pending legislation, and other writings relevant to the field. To receive future copies of the National Security Law Report, please submit your full address to the Standing Committee’s mailing list.

Law and Public Policy

al Qaeda Bomb Making Manual for Lonewolf Homegrown Terrorists

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The Daily Telegraph reports that al Qaeda’s Global Islamic Media Front has released a 102 page English language bomb making manual entitled “The Explosives Course.”  I’ve personally reviewed the document and it is amazingly well sourced and professionally prepared.  Sadly it provides all of the tools necessary for a lone wolf terrorist with limited training or education to carry out IED attacks against soft American targets.

Alexander Hitchens at ICSR calls it “the most lengthy and sophisticated manuals of its kind” and I have to agree with his assessment.  Entitled, “The Explosives Course” it says: “This book is aimed for brothers who have a sufficient understanding of the risks in this – both the actual sensitive task of making explosives and of its security risks.”  The books says: “[t]hough we have successfully performed these experiments and came up with new developments, the work of compiling these – more detailed editions of the book – are being delayed. Thus we decided to publish this work as a raw edition.”  In short, we are looking at the first in a planned series of publications from al Qaeda.  The book is divided into three parts 1. Laboratory; 2. Chemistry; 3. Manufacturing.  Each section provides instructions on how to prepare explosives using common household items, and even includes recommended locations for where to find components.

alQaedaExplosivesCourseSamplePage greg mcneal.jpg For an idea of the sophistication of the publication I’ve included an image featuring a harmless page from the book below.

This development comes shortly after al Qaeda’s launch of their English language magazine, Inspire, both of which demonstrate al Qaeda’s reliance on the internet for training and recruiting new members. This is a harbinger of things to come as al Qaeda continues to evolve from a centrally managed terrorist network to a decentralized, homegrown terrorist threat comprised of motivated individuals with little physical connection to other terrorist operatives.










Law and Public Policy

Must Read Books on Terrorism

Over at The Browser, Mary Habeck, Associate Professor of Strategic Studies at Johns Hopkins University picks five books that readers must buy to understand the War on Terror.  It’s an interesting post and worth the read.

Her picks:

Inside Terrorism by Bruce Hoffman

Understanding Terror Networks by Marc Sageman

The Looming Tower by Lawrence Wright

The Accidental Guerilla: Fighting Small Wars in the Midst of a Big One by David Kilcullen

The Great Theft: Wrestling Islam from Extremists by Khaled Abou El Fadl

To that list I would add three more with a decidedly legal focus:

Law and the Long War by Ben Wittes

The Terror Presidency by Jack Goldsmith

The Constitution and 9/11 by Louis Fisher


Law and Public Policy

President Obama’s Executive Order On Indefinite Detention Will Be A Failure

The Washington Post, USA Today, the New York Times, and others report that President Obama is preparing an Executive Order (EO) spelling out procedures for the indefinite detention without trial of detainees held in Guantanamo.  I haven’t read a draft, and I don’t need to read a draft to know that the EO is destined to fail.  For additional thoughts, read Lawfare, where there are analytical posts by Bobby Chesney here, Jack Goldsmith here, and Ben Wittes here.  Spencer Ackerman also has a thoughtful critique here.

The problem with this EO for indefinite detention (and EO’s more generally) is the easily changed nature of the procedures —they exist at the whim of the Executive and can be changed to suit his needs.  This process is going to create an opening for additional litigation, but unlike a statute the EO will lack the legitimacy of open and robust debate married to fixed procedures.  As evidence of this fact one need only look back to the pre-Hamdan military commissions (MC) established by Presidential Military Order.  Under the PMO MC’s the changing nature of the procedures was one of the major critiques raised by the detainees, and they used the changing process as an opening to argue about Executive authority and all manner of other issues.  Their critique had some merit on due process grounds: the original procedures for trials were spelled out in a lengthy PMO, they were supplemented by a handbook somewhere within the DoD bureaucracy, those rules were then frequently modified due to flaws (real or perceived).  All of this took place within the bureaucracy, but without the type of transparency and input one would get in any other bureaucracy governed by the APA or even with the type of transparency that governed changes to the UCMJ.  All of these factors made for big critiques of the PMO MC’s on legitimacy grounds, and it gave the detainees an opportunity to argue that the rules of the game were changing to further the end of successful convictions.  They argued about process and the PMO, and as good litigants, they also argued about Presidential power, sources of law such as IHL and IHRL, they raised questions about statutory authority and how to interpret the statutes authorizing the President to try detainees by military commission, and ultimately courts at different levels addressed all of these questions.

In this instance, I can’t see how some new indefinite detention process will be perceived as legitimate and not…ClickRead the full entrybelow to continue reading.

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