Matthew Waxman

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Recent Commentary

Analysis and Commentary

The National Security Dimension

by Matthew Waxmanvia New York Times
Tuesday, March 9, 2010

Efforts that are purportedly about transparency of government service and adherence to conflict-of-interest policies are, unfortunately, being used to paint detainee lawyers as disloyal to the country. . . .

The Use of Force Against States that 'Might' Have Weapons of Mass Destruction

by Matthew Waxmanvia Michigan Journal of International Law, Vol. 31, No. 1, 2009
Sunday, November 29, 2009
The Iraq war rekindled debate - a debate now further inflamed in discussions of Iran and North Korea - about the legal use of force to disarm an adversary state believed to pose a threat of catastrophic attack, including with weapons of mass destruction (WMD). Colliding with this debate is the stark fact that intelligence about hostile states’ WMD capabilities is and will remain limited and uncertain. This Article examines the following question: How should international legal rules on the use of force handle this intelligence gap?

Guantánamo, Habeas Corpus, and Standards of Proof: Viewing the Law Through Multiple Lenses

by Matthew Waxmanvia Case Western Reserve Journal of International Law, Vol. 42, p. 245, 2009
Thursday, November 19, 2009

The Supreme Court held in Boumediene v. Bush that Guantánamo detainees have a constitutional right to habeas corpus review of their detention, but it left to district courts in the first instance responsibility for working through the appropriate standard of proof and related evidentiary principles imposed on the government to justify continued detention. This article argues that embedded in seemingly straightforward judicial standard-setting with respect to proof and evidence are significant policy questions about competing risks and their distribution.

Intervention to Stop Genocide and Mass Atrocities: International Norms and U.S. Policy

by Matthew Waxmanvia Council on Foreign Relations
Thursday, October 1, 2009

On a stone wall at the memorial of the Dachau concentration camp, a promise is written in five languages: "Never Again." Yet in the decades since the Holocaust, in places from Cambodia to Rwanda to Darfur, international actors have failed to mount an effective response to mass atrocities.

Administrative Detention: Why Detain, and Detain Whom?

by Matthew Waxmanvia Journal of National Security Law & Policy, Vol. 3, 2009
Thursday, March 19, 2009
Especially after the recent Supreme Court decision in Boumediene v. Bush, holding that constitutional habeas corpus rights apply to detainees at Guantanamo, a debate burns over whether Congress should enact new laws authorizing preventive "administrative detention" of suspected terrorists outside the criminal justice system, perhaps overseen by a new "National Security Court". This Article argues that both sides of this debate analyze the problem and propose solutions backwards: they begin by focusing on procedural issues and institutional design (e.g. what kind of judge will decide cases; how will the suspect defend himself; etc) rather than first deciding (1) what is the strategic purpose of proposed new law, and (2) whom does it therefore aim to detain.
Analysis and Commentary

Closing Guantanamo is way harder than you think

by Matthew Waxmanvia Foreign Policy
Wednesday, January 21, 2009

Today, U.S. President Barack Obama suspended military commissions at the detention facility at Guantánamo Bay, Cuba...

Police and National Security: American Local Law Enforcement and Counter-Terrorism after 9/11

by Matthew Waxmanvia Journal of National Security Law & Policy, Vol. 3, p. 377, 2009
Friday, November 21, 2008
What makes the issue of American policing and national security so interesting and complex is the decentralized and localized nature of most law enforcement in the United States. These attributes give rise to three challenges for policing and national security. First, the decentralized and localized nature of American policing creates enormous organizational problems in coordinating national security activities, and combating terrorism in particular. Second, the counter-terrorism agenda may influence or disrupt systems and patterns of political accountability of local police agencies. Third, some of the same attributes of local policing that makes it a useful counter-terrorism tool also create difficulties in effectively carrying out more traditional functions.

Can Courts Be 'Trusted' in National Security Crises

by Matthew Waxmanvia Foundation for Law, Justice & Society, affiliated with Oxford University
Saturday, November 8, 2008
Since the birth of the United States, presidents have asserted greater powers at the short-term expense of liberty during crises, especially in times of war. Sometimes these expanded powers, such as authority to use military force, to monitor suspected groups, to arrest or deport, have come from Congress, and sometimes they have been assertedunilaterally. Events since the September 2001 terrorist attacks followed this familiar pattern. Congress passed several statutes, such as the USA PATRIOT Act, expanding and clarifying law enforcement and domestic intelligence powers. The Bush administration asserted as a matter of ’inherent‘ executive wartime authority additional powers, including the power to monitor domestic communications and to detain and interrogate certain suspected terrorists, beyond court (or public) scrutiny.
Analysis and Commentary

The Smart Way to Shut Gitmo Down

by Matthew Waxmanvia Washington Post
Sunday, October 28, 2007

In July 2005, I joined a group of senior policymakers at the White House for a review of administration policies on the U.S. military prison at Guantanamo Bay, Cuba.