Kristine A Huskey

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Journals/Publications

• Huskey, K. A. (2022). The Case for Tribal Veterans Healing to Wellness Courts. University of Missouri-Kansas City Law Review, 90(3), 20.
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  Addresses American Indian and Alaska Native military service/veterans, issues of PTSD and substance abuse, Veterans Treatment Courts and Tribal Healing to Wellness Courts.
• Huskey, K. A. (2018). Torture and State Violence in the United States: A Short Documentary History: The John Hopkins University Press Baltimore 2011; ISBN: 978-1-14214-0249-9 By Robert M. Pallitto, Ed.. Torture, 24(1), 3-3. doi:10.7146/torture.v24i1.109721
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  Given recent revelations confirming the involvement of high-level U.S. government officials in establishing and implementing the torture and abuse of detainees, Robert M. Pallitto’s book on U.S. torture and state violence is a must read.
• Huskey, K. A. (2017). Justice for Veterans: Does Theory Matter?. Arizona Law Review, 59(3), 40.
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  Comparing therapeutic jurisprudence and restorative justice theories re: veterans treatment court.
• Huskey, K. A. (2015). Reconceptualizing “the Crime” in Veterans Treatment Courts. Federal Sentencing Reporter, 27(3), 178-186. doi:10.1525/fsr.2015.27.3.178
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  Recent scandals involving the VA and high rates of suicides of veterans and active service members helped to raise public awareness about the consequences of military service which may manifest during duty and long after the soldier has been discharged. Veterans treatment courts (VTCs) recognize the negative impact of military service, particularly exposure to combat and/or war zones, and the enormous challenges faced in assimilating back into civilian life. Many leave service with mental health conditions, such as post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), or a substance abuse problem, caused by their military service. These conditions, together with learned behaviors that promoted survival in a war zone, such as hypervigilance and aggression, have the strong potential to lead to criminal behavior. This causal relationship has been demonstrated both in studies of vets of Vietnam and recent conflicts and the disproportionate number of veterans incarcerated over the last forty years. Veterans treatment courts, which are problem-solving courts in modality by favoring treatment over incarceration, recognize that military veterans are a unique subpopulation of defendants who could benefit from a special court tailored to their unique needs and common culture. VTCs, however, go one step further than their predecessor courts by reconceptualizing “the crime” as conduct prompted by an underlying condition and ultimately linked to exposure to combat and war zones, necessitated by their military service. Doing so avoids criminalizing conduct that was viewed favorably on the battlefield. VTCs, with their therapeutic justice model, allow communities to share in the criminal and moral responsibility for the underlying condition, which is appropriate given it is a consequence of service to the nation. Veterans treatment courts thus carry out an important part of the nation’s continuing duties to its veterans.
• Huskey, K. A. (2012). A Strategic Imperative: Legal Representation of Unprivileged Enemy Belligerents in Status Determination Proceedings. The Santa Clara Journal of International Law, 11(1).
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  In the ongoing “war against terrorism,” the United States has been detaining thousands of individuals without charge or trial until “the end of hostilities.” Should these individuals receive legal counsel during military administrative proceedings, which may result in long-term, if not lifelong, deprivation of liberty? This article addresses the thorny question of why due process and, specifically, legal representation, is critical in the status determination hearings of detainees in U.S. military custody at the Bagram Theater Internment Facility. As a preliminary matter, one must recognize that the authority for preventive indefinite detention as proffered by Hamdi v. Rumsfeld may be reaching its limit given the realities in the current U.S. conflict against Al-Qaeda and affiliated groups. Factors, such as the lack of temporal and geographical boundaries, and the fact that the “enemy” is stateless and dressed as a civilian, argue that the “understanding” of preventive detention under traditional laws of war by the Hamdi Court has unraveled. This creates the need for more, not less, due process in status determination proceedings, as well as questions the authority to indefinitely detain such individuals. Second, the Boumediene Court’s discussion of Eisentrager and its heavy criticism of the Combatant Status Review Tribunals (CSRTs) highlight the need for counsel and an adversarial process to better achieve accurate status determinations of people picked up in the “war against terrorism.” Further, a comparison of the practical concerns and challenges in the Bagram status determination hearings to those in the CSRTs reveal that while the Bagram process has improved, it has not gone far enough. In conclusion, both the rationale underlying counsel as fundamental to due process and the practical circumstances involved in the “war against terrorism” combine to make legal representation a strategic imperative in status determinations of detainees. This paper was originally presented as a response to Geoffrey Corn and Peter Chickris' article, "Unprivileged Belligerents, Preventive Detention, and Fundamental Fairness: Rethinking the Review Tribunal Representation Model," at the symposium, "Emerging Issues in International Humanitarian Law," sponsored by Santa Clara University Law School.
• Huskey, K. A. (2012). Accountability for Private Military and Security Contractors in the International Legal Regime. Criminal Justice Ethics, 31(3), 193-212. doi:10.1080/0731129x.2012.737169
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  Abstract The rapidly growing presence of private military and security contractors (PMSCs) in armed conflict and post-conflict situations in the last decade brought corresponding incidents of serious misconduct by PMSC personnel. The two most infamous events—one involving the firm formerly known as Blackwater and the other involving Titan and CACI—engendered scrutiny of available mechanisms for criminal and civil accountability of the individuals whose misconduct caused the harm. Along a parallel track, scholars and policymakers began examining the responsibility of states and international organizations for the harm that occurred. Both approaches have primarily focused on post-conduct accountability—of the individuals who caused the harm, of the state in which the harm occurred, or of the state or organization that hired the PMSC whose personnel caused the harm. Less attention, however, has been paid to the idea of pre-conduct accountability for PMSCs and their personnel. A broad understanding of “accoun...
• Huskey, K. A. (2011). Guantanamo and Beyond: Reflections on the Past, Present, and Future of Preventive Detention. University of New Hampshire Law Review, 9(2).
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  For most of the men held at Guantanamo, January 11, 2011 marked the beginning of a decade of detention without charge or trial in stark prison conditions. Two years after President Obama’s executive order in 2009 calling for its closure, the prison camp remains open with no political will by either party to close it. Whether Guantanamo closes, however, is no longer the most significant national security detention issue, though it should close for symbolic purposes and, of course, to the men there, its closure is surely far from insignificant. The most pressing question for our democratic society is whether military preventive detention - whether at Guantanamo or elsewhere - will continue to evolve into a permanent fixture in American’s national security landscape. This article reviews the pertinent legislation over the last several years, including the National Defense Authorization Act for 2011, that have severely restricted the executive’s ability to close Guantanamo. Importantly, it also reviews detention case law and the current administration’s policy statements and actions, which have clearly evinced the goal to retain indefinite preventive detention under the “laws of war” as a tool in the national security toolbox long after U.S. troops leave Iraq and Afghanistan. Among other factors, the pending executive order providing for parole-like review hearings of the Guantanamo detentions, the D.C. Circuit’s approach to the habeas cases, and the Maqaleh Bagram case all lead to the unavoidable conclusion that the U.S. has already institutionalized a military indefinite preventive detention regime. Such an institution is profoundly problematic when it allows the U.S. to assert the authority under the laws of war to pick up any individual anywhere in the world, who is a suspected a member of al Qaeda or 'associated forces' but is dressed as a civilian, and detain them in prison-like conditions without charge or trial until the end of a war, which has no foreseeable or verifiable end.
• Huskey, K. A. (2010). The American Way: Private Military Contractors & US Law after 9/11. SSRN Electronic Journal. doi:10.2139/ssrn.2184090
• Huskey, K. A. (2007). Standards and Procedures for Classifying "Enemy Combatants": Congress, What Have You Done?. Texas International Law Journal, 43(1).
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  I. INTRODUCTION As an alumna of The University of Texas School of Law, it is quite an honor to be here-in the month of my ten-year class reunion-addressing an issue that is as contemporary as it is controversial, and which has consumed half of my legal career already. Indeed, it was roughly five years ago (March 2002) that I began representing Kuwaiti citizens detained at Guantanamo. In those early post-9/11 years, our government kept everything about Guantanamo a secret, from who was detained there to how they were treated. Not even the small handful of lawyers representing detainees were allowed to visit or communicate with their clients, who, according to the Administration, had no legal rights under domestic or international law. When I began down this road five years ago, Guantanamo was literally a "legal black hole."1 The Supreme Court changed much of that in June of 2004 when it ruled in my case, Al Odah v. United States, joined with Rasul v. Bush,2 that the detainees were entitled to bring habeas corpus petitions in federal court to challenge their detention. But after two years of fighting with the government over the meaning of Rasul, Congress abruptly passed the Military Commissions Act of 2006 ("MCA"),3 which ostensibly strips the Guantanamo detainees of the right to challenge any aspect of their detention, including the right to habeas corpus. Remarkably, we are almost exactly where we were five years ago, except that now, Congress has weighed in and approved of Guantanamo as a virtual law-free zone. What do I mean by "law-free zone"? "Law-free" implies the absence of law. Despite the availability of our great criminal justice system, courts martial, the Constitution, the Geneva Conventions, and other international law treaties under which the U.S. has legal obligations, both the Administration and Congress have declined to apply those legal paradigms at Guantanamo. Yet Congress has approved some type of framework for the continued detention of hundreds of individuals and the potential detention of hundreds more of non-U.S. citizens, including legal U.S. residents, in the "global war on terror." The fact that some manufactured framework exists, however, does not change Guantanamo's status as a legal black hole; indeed, the manufactured framework exacerbates the situation by giving the Guantanamo detentions a veneer of legality. What is the framework Congress has conceived? What are its consequences? And is it the appropriate mechanism for containing and preventing "terror"? To answer these questions and think critically about the concepts that make up that framework-enemy combatant, combatant status review tribunals, military commissions, etc.-let us first consider the larger setting in which they occur, that is, the "global war on terror." Zbigniew Brzezinski, National security Advisor to President Jimmy Carter, wrote recently that the "war on terror" has created a "culture of fear in America." The Bush administration's elevation of these three words into a national mantra since the horrific events of 9/11 has had a pernicious impact on American democracy, on America's psyche, and on U.S. standing in the world."4 Mr. Brzezinski pointed out that the phrase itself is meaningless, defining neither a geographic context nor our presumed enemies, and he went on to state, in the most critical terms, that the "vagueness of the phrase was deliberately (or instinctively) calculated by its sponsors."5 Mr. Brezinski further noted that the very vagueness of the phrase accomplished one major objective: "[i]t stimulated the emergence of a culture of fear."6 This, he wrote, was a self-inflicted wound greater than anything imagined by the perpetrators of the 9/11 attacks.7 It is hard to disagree with Mr. Brzezinski. The Guantdnamo detentions and other "war on terror" policies, such as extraordinary rendition and "extreme interrogation," have done little to help stem terrorism-rather, they have fueled it. …

Presentations

• Huskey, K. A., & Brooks, M. (2023, November). Tribal Healing to Wellness Courts: Developing a Native Veterans Court. Webinar Training. Virtual: Tribal Law and Policy Institute.
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  Why and how to establish a Tribal Veterans Treatment Court w/in Tribal Courts
• Huskey, K. A., & Wandler, H. (2023, November). “Acknowledging Their Service, Addressing Their Needs, and Learning from Their Restorative Traditions,” . After Their Service, the Intersection of Veterans and the Law. University of St. Thomas School of Law, Minneapolis, MN: University of St. Thomas Law Journal.
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  Addressing needs of American Indian Alaska Native Veterans
• Huskey, K. A., Nuss, C. L., & Reyes, C. D. (2023, November).  “Approaches to Expanding Veterans Treatment Courts". A Salute to Veterans in Need of Restorative Justice. University of St. Thomas School of Law, Minneapolis, MN: Veterans Defense Project and University of St. Thomas School of Law.
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  Discussion of how to expand access to veterans treatment courts particulary in Tribal Courts and in US federal courts
• Huskey, K. A. (2022, June). “Advocating for Native American Veterans". 2022 National Law School Veterans Clinic Consortium Conference. virtual: National Law School Veterans Clinic Consortium.
• Huskey, K. A. (2022, Sept.). Tribal Healing to Wellness Court Veterans Symposium and Roundtable Pt. 1. 2022 Tribal Healing to Wellness Court Enhancement Training. Albuquerque, NM: Tribal Law and Policy Institute.
• Huskey, K. A. (2020, May). Therapeutic Justice and Restorative Practices: From Then to Now. Veterans Law in a Virtual Age: Highlighting New Policy Developments and Continuing Progress in Therapeutic and Restorative Justice. virtual: New York State Division of Veterans Services and University of Buffalo School of Law.
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  Veterans Treatment Courts and Restorative Justice
• Huskey, K. A. (2019, July). Restorative Justice and the Native American Veteran Population. International Congress on Law and Mental Health 2019. Rome, Italy: International Academy of Law and Mental Health.
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  Abstract for presentation:By 2019 there will be close to 3.5 million veterans in the post-9/11 cohort alone, in the United States. Many leave the service with mental health injuries, such as post-traumatic stress disorder, traumatic brain injury, depression, acute anxiety and substance abuse problems. These conditions have been linked to criminal conduct. Veterans Treatment Courts (VTCs) aim to address a unique subpopulation of defendants who may benefit from treatment tailored to their particular social and psychological needs and common military conduct. VTCs, of which there are more than 350 in the U.S, have generally followed the Therapeutic Jurisprudence model. However, Restorative Justice, with its origins deriving from indigenous cultures, is a theory of justice unexplored in the context of justice-involved veterans. Restorative Justice focuses on the community as the force driving the restoration of the victim, the prevention of future harm by the offender, and the reintegration of the offender back into society. As such, it may be exceptionally suited for veterans whose military culture is one of community and “the tribe.” A revealing subpopulation may be Native American military veterans. How are their underlying mental health issues treated? How are they supported in assimilating back into their communities? How are they faring in the tribal criminal justice systems?