‘Unlawful Combatants’: The West's Treatment of Irregular Fighters in the ‘War on Terror’

The West's treatment of irregular fighters in the “war on terror” was highly problematic. This article contends that we must look beyond the assumption that political and strategic considerations compromised the law and led to the “invention” of the category of the “unlawful combatant.” Rather, the law of armed conflict itself includes strong exclusionary mechanisms towards irregular fighters. These exclusionary strands in the law came to dominate the West's strategic decision-making on the treatment of irregular fighters. Moreover, the fact that irregular fighters became such a vital issue post-9/11 was not a result of the war on terror being a new kind of war, as has often been argued. Rather, this article suggests that it reflects an identity crisis of the West's regular armed forces at the start of the twenty-first century.     

Non-Western Threats and the Social Sciences

As the Department of Defense strives to take the social sciences more seriously in the face of threats emanating from the non-West, it confronts several challenges. Among them, we Westerners cannot model non-Western minds. Nor can we devise a methodology that will accurately capture contingency. We may already be doing our “scientific” best with “pattern of life” targeting. Consequently, DoD should invest more heavily in individuals who already have an affinity for, and interest in, the non-West and who show promise as future commanders and talented analysts rather than spend large sums on trying to devise more comprehensive models, methodologies, and metrics.     

A walk in to the cloud and cloudy it remains: The challenges and prospects of ‘processing’ and ‘transferring’ personal data

Cloud computing is an information technology technique that promises greater efficiency and reduced-cost to consumers, businesses and public institutions. However, to the extent it has brought better efficiency and minimal cost, the emergence of cloud computing has posed a significant regulatory challenge on the application of data protection rules particularly on the regime regulating cross-border data flow. The Data Protection Directive (DPD), which dates back to 1995, is at odds with some of the basic technological and business-related features of the cloud. As a result, it is claimed that the Directive hardly offers any help in using the legal bases to ‘process’ and ‘transfer’ data as well as to determine when a transfer to a third country occurs in cloud computing. Despite such assertions, the paper argues that the ECJ's Bodil Lindqvist decision can to a certain extent help to delineate circumstances where transfer should and should not occur in the cloud. Concomitantly, the paper demonstrates that controllers can still make the most of the available possibilities in justifying their ‘processing’ as well as ‘transferring’ of data to a third country in cloud arrangements. In doing so, the paper also portrays the challenges that arise down the road. All legal perspectives are largely drawn from EU level though examples are given from member states and other jurisdictions when relevant.     

Trust in digital records: An increasingly cloudy legal area

Trust has been defined in many ways, but at its core it involves acting without the knowledge needed to act. Trust in records depends on four types of knowledge about the creator or custodian of the records: reputation, past performance, competence, and the assurance of confidence in future performance. For over half a century society has been developing and adopting new computer technologies for business and communications in both the public and private realm. Frameworks for establishing trust have developed as technology has progressed. Today, individuals and organizations are increasingly saving and accessing records in cloud computing infrastructures, where we cannot assess our trust in records solely on the four types of knowledge used in the past. Drawing on research conducted at the University of British Columbia into the nature of digital records and their trustworthiness, this article presents the conceptual archival and digital forensic frameworks of trust in records and data, and explores the common law legal framework within which questions of trust in documentary evidence are being tested. Issues and challenges specific to cloud computing are introduced.     

Nature and consequences of dismissals: Implications for public safety and crime prevention in criminal courts in America

The role of dismissal as a major case disposition in criminal courts in America has been largely neglected in empirical studies to date, despite long-lasting questions about its nature and important implications for justice goals. This paper is a first attempt to fill in this gap.

Purpose

Drawing on untested assumptions about a possible dismissal-reoffending connection, the paper proposes a public safety framework for examining the nature of dismissals and their consequences for the community. Under this perspective, dismissal is a function of defendants’ risk attributes and contributes to subsequent public safety threat.

Methods

To test these hypotheses, predictive and causal analyses were conducted on an 800-case sample of criminal defendants in one large urban American jurisdiction, Philadelphia, Pennsylvania. Cases were sampled at the first judicial stage and followed as a cohort for one year to record disposition and post-disposition outcomes.

Results

The findings indicate that defendants’ risk attributes contribute to the explanation of dismissal and that dismissal in itself adds to the probability of subsequent offending.

Conclusions

The findings raise questions about the justice system goals, particularly deterrence and have important policy implications for the processing and disposition of criminal cases in American jurisdictions.     

Preemption, Unilateralism, and Hegemony: The American Tradition?

Historian John Lewis Gaddis has found precedent for the current war on terror in early American history, arguing that the British burning of the capitol in 1814 had an impact on defense policy similar to the terrorist attacks of 9/11, leading to an emphasis on preemption. In basic respects, Gaddis restates the consensus among diplomatic historians that the early republic's foreign policy focused on preemption, unilateralism, and hegemony. But these depictions of early American diplomacy conflate separate eras and ignore an opposing tradition that was more moderate and principled. They are not without some truth, but their imperious sway in histories of our country needs to be checked and balanced.