50:5 Accounting For the Neglected: Taking Steps Toward More Equitable Treatment of Stepchildren In Texas’s Wrongful Death Statute

Article

50:5 Employing the Right Test: The Importance of Restricting AT&T v. Concepcion to Consumer Adhesion Contracts

Article

50:5 Removing Removal’s Unanimity Rule

Article

50:5 Neofeminism

Article

50:5 An Empirical Analysis of the Use of the Intent Test to Determine Parentage in Assisted Reproductive Technology Cases

Article

50:4 All Dogs Go To Court: The Impact of Court Facility Dogs As Comfort for Child Witnesses on a Defendant’s Right to Fair Trial

Article

50:4 Radlax Gateway Hotel, LLC v. Amalgamated Bank: Examining the Importance of Credit Bidding at Chapter 11 Asset Sales

Article

50:4 Through a Glass, Darkly: Predicting Bankruptcy Jurisdiction Post-Stern

Article

50:4 A Skeptic’s Case for Sovereign Bankruptcy

Article

50:4 Bankruptcy and It’s By-Products: A Comment On Skeel

Article

50:4 Is Bankruptcy the Answer for Troubled Cities and States?

Article

Being Honest About Chance: Mitigating Lafler v. Cooper’s Costs

Article

Legal Strategies in the Fight to End Human Trafficking

Article

50:3 In Vitro Meat: Space Travel, Cannibalism, and Federal Regulation

Comment

50:3 Packing Away the Primaries: A Proposal For More Effective Super Pac Donor Disclosure

Comment

50:3 Eggshell Minds and Invisible Injuries: Can Neuroscience Challenge Longstanding Treatment of Tort Injuries?

Comment

50:3 You Don’t Need a Weatherman to Know Which Way the Wind Blows?: An Argument For Offshore Wind Development in the Gulf Of Mexico

Comment

50:3 Delineating Sexual Dangerousness

Article

50:3 A “Common” Proposal

Article

50:3 Check Please: Using Legal Liability to Inform Food Safety Regulation

Article

What Copyright Owes the Future

Article

A Debate Two Hundred Years in the Making: Corporate Liability and the Presumption Against Extraterritoriality Under the Alien Tort Statute

Comment

Dilution [Blending] Is Not the Solution to Pollution: Questionable Revisions to Long-Standing Radioactive Waste Policies

Comment

Much Ado About Preemption

Article

The End of an Epithet? An exploration of the use of Legal Scholarship in Intellectual Property Decisions

Article

The Patent Malpractice Thicket, or Why Justice Holmes Was Right

Article

Prometheus Laboratories, Mental Steps, and Printed Matter

Article

Reforming Software Patents

Article

An Early Roll of the Dice: Appeal Under Conditional Finality in Federal Court

Article

 

Analysis of the Proposed Amendments to Federal Rule of Civil Procedure 45 Pertaining to Nonparty Subpoenas for Documents

Article

Substituted Judgment and Best Interests Analysis: Protecting the Procreative Medical Rights of the Mentally Incompetent In Texas

Article

Continued Racial Disparities in the Capital of Capital Punishment: The Rosenthal Era

Article

Bradford C. Mank, Judge Posner’s “Practical” Theory of Standing: Closer to Justice Breyer’s Approach to Standing than to Justice Scalia’s

Article

Group Deliberation and The Endowment Effect:
 An Experimental Study

Article

All For One and One For All: Informed Consent and Public Health

Article

Even Employees Are Self-Employed— Success as a Professional Takes More Than Technical Ability

Article

Whether State-Propounded Employment-Based Immigration Regulations Are Surviving Preemption Challenges—A Look at Whiting and Arizona

Article

Cyberbullying: Holding Grownups Liable For Negligent Entrustment

Article

Fast’s Four Factors: A Solution to Similarly Situated Discovery Disputes in FLSA Collective Actions

Article

Central Hudson-Plus: Why Off-Label Pharmaceutical Speech Will Find Its Voice

Article

The Ideological Origins of the Thirteenth Amendment

Article

Reconceptualizing the BP Oil Spill as Parens Patriae Products Liability

Article

Too Many Tiaras: Conflicting Fiduciary Duties in the Family-Owned Business Context

Article

To Steal or Not to Steal: An Analysis of the Computer Fraud and Abuse Act and Its Effect on Employers

Address

Education Works! How Broadcast Fleeting Expletives Stimulate Comprehensive Sex Education for Our Youth

Address

Proposal for Resolution to Challenges Posed by DNA Sequence Patents on the Development of Multiplex Genetic Tests

Address

49:1 Enforcing Against the Enforcers: Ensuring Immigration Compliance Through Civil RICO

Address

The Twilight of Responsibility: Torture and the Higher Deniability

Address

The Taint of Torture: The Roles of Law and Policy in Our Descent to the Dark Side

Address

49:1 Codes of Conduct for a Twilight War

Address

Abstract

This Article reflects on the codes of conduct the United States has devised, and has improvised, during the last ten years of the Twilight War. As the polemics have subsided and policies are regularized for the long haul, I focus only on two major issues—codes for interrogating enemy captives and the code for defining the enemy. As “legal realists” have observed, legal doctrines rarely emerge from classrooms and often not even from courts. This is then a personal history of how these legal policies took shape and evolved. But one of the most important insights to take away from this historical episode was that the advocates for the radically new codes of conduct framed the issue as a legal question—substantively and bureaucratically. Instead of framing the question around what “should” be done, carefully inventorying prior U.S. and foreign experience in detention practices and interrogations and analyzing all the pros and cons, the issue was debated as one of what “can” be done. If it does nothing else, this episode should reveal the dangers implicit in this habit of thought.

The Essay also underscores the policy and even management value of well-defined, politically sustainable guidelines for secret operations to kill enemies and deal with captives. Because the government must entrust intelligence operatives with exceptional power, a fundamental social contract forms. Such a social contract is an essential foundation to granting intelligence agencies and military departments, with thousands of employees conducting many operations around the world, extraordinary powers to intercept communications, break laws in other countries, and even use lethal force to defend the country—all in secret. When the contract is broken, trust breaks down and all sides will lose.