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What Is Legal Black Hole

When the sovereign of one state declares war on another sovereign, it implies that the whole nation declares war and that all the subjects of one are the enemies of all the subjects of the other. When hostilities began, the first objects that naturally lend themselves to arrest and capture were the persons and property of the enemy who were on the territory at the beginning of the war. According to strict authority, a State has the right to treat persons and property in its power as an enemy, to confiscate property and to detain it as prisoners of war. 40 40 James Kent, Commentaries on American Law 56 (1826). Close In recent years, legal black holes have disappeared and before different areas converge. The importance of the United States Protection of citizenship by the Constitution and the courts is diminishing, formal barriers to legal protection and judicial review based on geography and war are dissolving, and the dissolution of these categorical boundaries is changing the conception and functioning of the national security state. National security and foreign law are domesticated and normalized as peacetime, ordinary, national, and peacetime rights protections are extended to previously legal black holes. Case law on categorization and delimitation is fading. Other scholars writing about national security and foreign affairs have recently noted the mixing and convergence of previously disparate fields, similar to the processes I will describe.

Robert Chesney has shown how U.S. judicial authorities and the rules governing the operation of military and intelligence operations have converged. 24 24 See Robert Chesney, Military-Intelligence Convergence and the Law of the Title 10/Title 50 Debate, 5 J. Nat`l Security L. & Pol`y 539, 544–83 (2012). Close Chesney and Jack Goldsmith argued that substantive and procedural laws governing detention in military and law enforcement contexts have converged. 25 25 See Robert Chesney & Jack Goldsmith, Terrorism and the Convergence of Criminal and Military Detention Models, 60 Stan. 1079, 1100–20 (2008) (discusses convergence in the post-9/11 era of military detention). Close Joseph Landau has written about how the due process revolution in domestic law, particularly in the area of „new properties,“ has been embedded in both immigration and national security law, which has helped significantly increase legal protections for non-citizens in these areas. 26 26 See Joseph Landau, Due Process and the Non-Citizen: A Revolution Reconsidered, 47 Conn. L.

Rev. 879, 894–911 (2015) (noting Matthews v. Eldridge`s influence on due process in the context of immigration and national security). And Richard Pildes and Samuel Issacharoff have shown how changes in law, political culture, and military technology are putting increasing pressure on the military to „individualize,“ that is, to use force surgically so that it affects only those individuals who have been tried in one way or another targeted or guilty by a fair trial. 27 27 Samuel Issacharoff & Richard H. Pildes, Targeted Warfare: Individuating Enemy Responsibility, 88 N.Y.U. L. Rev. 1521, 1596 (2013) [hereinafter Issacharoff & Pildes, Targeted Warfare] (arguing that the changes are part of a „profound but partial transformation with respect to the legitimate use of military force“). All of these results provide context for the convergence of legal protection and the disappearance of legal black holes, which I describe below. The scope of protection was thus based on formal and categorical distinctions between U.S. territory and aliens, war and peace, residents and non-residents, citizens and non-citizens, enemy combatants and non-citizens, combat zones and elsewhere.

There were many legal black holes where people, places, or contexts were on the wrong side of the categorical divide and outside the protection of the law. This is not to assert that inter arma enim silent leges – in wartime, laws are silent 18 18 The term dates back to Cicero and is now commonly used to describe and criticize how courts are supposed to become much more respectful of political power responses to emergencies than ordinary legal regulations should allow. See Richard H. Pildes, Law and the President, p. 125. 1381, 1385 & n.19 (2012) (Revised by Eric A. Posner & Adrian Vermeule, The Executive Unbound: After the Madisonian Republic (2010)) (referring to the origin of the expression and modern usage). This means that, in practice, existing legal restrictions tend to disappear in wartime when the government exceeds the limits of what is allowed. The allegation is that the accepted limits of legal protection were limited by categorical distinctions in terms of place, person and context. The importance of an individual`s citizenship and territorial status for protection from laws and courts has diminished, and it is possible to imagine a future in which they are largely irrelevant.

But not all commentators see this kind of convergence. For example, since 9/11, it has been claimed that the U.S. government has targeted and oppressed non-citizens like never before. 105 105 See, for example, David Cole, Enemy Aliens 1–14 (2003) [hereinafter: Cole, Enemy Aliens] (discusses the treatment of aliens since 9/11). Close There is certainly some truth to this. The trial by military commission, detention at Guantanamo Bay, extraordinary renditions abroad, and detention at CIA black sites abroad, where some of the worst interrogations took place, were all reserved for non-citizens.

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