Law School Faculty Blog

The Real Origin of the Term ‘Enemy Combatant’


For over a dozen years, since the attacks on 9/11, a new and pernicious term has permeated the war lexicon and the mainstream: enemy combatant. Although originally intended as the United States' designation for al Qaeda and Taliban captives, it is now often indiscriminately applied to alleged terrorists throughout the world. In 2009, President Obama abandoned the term, substituting language more consistent with the Geneva Conventions. However, the term enemy combatant is still on Americans' radar screens.

Many scholars of international law believe that the U.S. deliberately invented the term in order to circumvent the protections of the Geneva Conventions (GC). Under the GC, the universe of combatants are two: lawful (also called prisoners of war) and unlawful.


Illuminating “Hybridity”

Author: Environment, Regulations

You don’t have to look far to encounter “fracking,” shorthand for hydraulic fracturing, a method of extracting oil and gas from the earth by injecting a mixture of chemicals, sand, and water into shale rock formations deep underground at high pressures. Fracking itself is not a novel technology, but the advent of horizontal drilling, which allows drillers to drill across broader swaths of rock, has improved the return on investment for pioneering oil and gas companies. The result is a proliferation of wells in places like Colorado, Texas, Pennsylvania, North Dakota, and West Virginia; and controversy in places like New York, Vermont, and California, among others. Proponents see fracking as a panacea that will make the United States a top global producer of natural gas, and move the country away from coal and toward cleaner energy. Opponents point to the myriad questions that surround fracking, its risks, and the ultimate effects it may have on the communities in which it takes place.


Reflections on 2013


Dean John TrasvinaAs we begin 2014 together, I hope you all have had a happy holiday season.

Before closing the door on 2013, our first year of working together, I want to share with you what it meant to me when I recently—in the past month—witnessed women on two separate occasions who were driven to tears by their experiences with our law school. One was a grandmother who traveled from Southern California to see her grandson be sworn in to the California bar at our ceremony at St. Ignatius Church. He is the first lawyer in the family and the path over generations was not easy. The other was a small businesswoman who contacted one of our clinics for help to fight off a large company whose legal actions threatened to shut down her dream before it got off the ground. We provided both the legal expertise and the personal understanding that enabled her to persevere and prevail. 


EPA’s New Source Proposal: The “Category” Question


On September 20, 2013, the EPA proposed new source performance standards for greenhouse gas emissions for new power plants. Although the agency repackaged and fine-tuned an earlier proposal, issued in April 2012, it continues to hold the coal industry’s feet to the fire. The proposal makes clear that new coal-fired power capacity cannot be built without major reductions in carbon emissions. The agency’s new proposed rule continues to convey a critical message to utilities contemplating new energy-generation investments: utilities can no longer develop uncontrolled high-emission energy sources; future energy investments must either be lower-carbon or control carbon. The agency’s proposal provides clear parameters for future investments that set the nation on a more sustainable energy path.


The Charge of Law Schools


President Obama's recent suggestion that law schools consider eliminating the third year of study puts welcome national attention on crises in the legal profession and legal education which have serious implications for all our communities. While jobs for lawyers and applications for law schools have dropped precipitously, injustice and the average American's need for quality, affordable legal representation have not. The question for law schools is less about how quickly we can send students to a struggling profession than it is how well we prepare them to be successful, ethical lawyers promoting justice and worthy of the trust that clients place in them.

To be worthy of accepting tuition dollars from students and their parents, all law schools must more effectively prepare the next generation of lawyers whose careers will take them into the second half of the 21st century. Law schools must not only adapt to the changes in the profession brought about by the economy and technology, we must get ahead of them. At the University of San Francisco School of Law, we are evaluating and strengthening our courses to best prepare students to pass the bar examination and be practice-ready problem solvers upon graduation. Our faculty are training today's law students to meet the legal needs of families and businesses in an array of areas, from tax to intellectual property to immigration, something that could be lost without a third year of study. As a school that has been majority women since 1989 and whose first year class this fall has a majority of students of color, we, today, look like the nation will look in the next 30 years. We are delivering legal education that effectively assists a diverse student population to address the concerns that matter most to them and to their communities, and that enables them to thrive. The third year is a critical component of that goal.


9/11: A Mystery to the Young


Recently, a local high school girl I will call Lisa interviewed me for a report she was doing on torture. I am the founder and director of the Witness to Guantanamo project, where we film in-depth interviews of former detainees, their family members and people who have lived or worked in the detention center in Guantanamo Bay, Cuba. Currently, there are 164 people still held in the prison.

During the interview, I explained that although physical torture was present in Guantanamo, the detainees often referred to the detention center as a psychological prison. Extended periods of isolation and other psychological mistreatment were commonly practiced. I mentioned that one of the most egregious situations, where a detainee was both physically and psychologically tortured, concerned the man the government believes would have been the 20th hijacker. In fact, I added, the military had even acknowledged his torture.


The Link Between Guantanamo and Syria


American Constitution Society for Law and Policy (ACS) asked me to write a piece on Guantanamo for the 12th anniversary of the attacks on the Twin Towers and the Pentagon on September 11, 2001. I am the founder and director of the Witness to Guantanamo project. The project films interviews with former detainees and others who lived or worked in Guantanamo Bay, Cuba.

However, as I try to write about the men still held in Guantanamo after nearly 12 years, President Obama’s threat to bomb Syria for its alleged use of chemical weapons continues to tug at my thoughts. There is an intersection between America’s threatening events in Syria and our treatment of the men in Guantanamo. In both scenarios, the rule of law is ignored and abandoned.

Of the 164 men still imprisoned in the detention center, 84 have never been charged with a crime and are cleared for release. Yet, Obama has done nothing to release them except to express the belief that Guantanamo should be closed. He signed an executive order that the prison be shuttered on his second day of office, more than four years ago. The prison is still open.


GHG Trading and Co-Pollutants: Expanding the Focus


I agree with David Owen’s recent blog post that David Adelman’s article, The Collective Origins of Toxic Air Pollution: Implications for Greenhouse Gas Trading and Toxic Hotspots, makes significant contributions to our awareness of the sources of toxic pollution and our collective responsibility for reducing emissions. He focuses on the distributional implications of GHG trading for associated co-pollutants, addressing two important environmental justice issues: the extent to which its impacts on industrial emissions could lead to changes in relative levels of toxic emissions, and the extent to which a GHG trading program could exacerbate racial disparities. He focuses on the degree to which a trading program would cause industrial hotspots or racial disparities, and his analysis shows that a GHG trading program for industrial sources would, in most instances, not play a substantial role in causing either of these consequences, largely because mobile and nonpoint sources are the primary cause of most air toxics hotspots. Those observations are important to the debate about a GHG trading program’s distributional implications for toxics hotspots.

I write to add one additional consideration to the analysis: a GHG trading program’s implications for cumulative pollution levels. Even if a GHG trading program would not cause an industrial hotspot—would not substantially change relative air toxics levels—the value of small changes in cumulative pollution is also relevant to the larger debate over a GHG trading program’s impacts on air toxics hotspots.


A Life-long Commitment to Justice and Service


OneJustice is honoring former dean Jeff Brand on July 25, 2013, at its Opening Doors to Justice celebration. The following blog was originally posted on OneJustice's website.

Jeff Brand traces his earliest memories of injustice to when he was still in grammar school. And he has dedicated his life to justice, service, and ensuring future generations are able to do the same.

Professor Jeffrey Brand recently stepped down after 14 years of serving as Dean of the University of San Francisco School of Law. During his tenure as dean, he not only guided the law school through a period of transformative change, he also supported collaborative efforts between the law school and OneJustice, including the Law Student Pro Bono Project. USF law students also participated in the inaugural Justice Bus Trip to the Central Valley in March 2007 and they continue to volunteer for multiple Justice Bus trips every year.

We are very excited to be celebrating Professor Brand and his life-long commitment to justice and service at our July 25th “Opening Doors to Justice” event. We hope very much that you will join us! You can purchase tickets, preview auction items, and donate to support the Justice Bus at the event website.


And Marriage Makes Three: A Gay Rights Trilogy Secures a Legacy


The Supreme Court's landmark ruling this week in U.S. v. Windsor invalidating Section 3 of the federal Defense of Marriage Act follows a path carefully forged by Justice Anthony Kennedy. Windsor marks the third time Justice Kennedy has authored a majority opinion in a groundbreaking gay rights case, and his reasoning makes clear that the prior two cases were not aberrations, as some had speculated.

Playing his usual role in dissent, Justice Scalia displayed his reliably pugnacious panache, expressing shock and outrage and claiming to be confounded while he proceeded to skewer the majority's rationales. But nothing about Justice Kennedy's approach should have come as a surprise to his fellow conservatives this third time.