Law Commons^™

The Military Response To Criminal Violent Extremist Groups: Aligning Use Of Force Presumptions With Threat Reality, Geoffrey S. Corn

Geoffrey S. Corn

Debates over the permissible authority to use force against emerging non-state threats are consistently dictated by a binary legal paradigm: either armed conflict is recognized permitting status based targeting or law enforcement conduct based use of force norms must be respected. This paradigm has driven an expansion of the threats characterized by states as falling within the scope of non-international armed conflicts, a trend that has produced substantial controversy. At the same time, in many states organized criminal groups are creating unprecedented challenges to government authority by utilizing widespread and indiscriminate violence to sow the seeds of chaos and demonstrate …

Miranda, Secret Questioning, And The Right To Counsel, Geoffrey S. Corn

Geoffrey S. Corn

Surreptitious police questioning, either through an undercover officer or a prison inmate acting as a government agent, is often an effective tactic to exploit a suspect’s erroneous belief that it is safe to make incriminating statements. The Supreme Court has held that use of this tactic does not implicate the Miranda rights warning and waiver requirement because the suspect’s ignorance that the false friend is in fact a government agent eliminates an essential element of the custodial interrogation trigger for these rights. However, in Edwards and Minnick, the Supreme Court recognized that once a suspect invokes the Miranda right …

Arizona V. Gant: The Good, The Bad, And The Meaning Of Reasonable Belief, Geoffrey S. Corn

Geoffrey S. Corn

Reasonable belief. Use of this phrase by the Supreme Court in Arizona v. Gant transformed what could have been a clear and logical holding into a source of potential uncertainty. At its core, Gant constricts the authority to search an automobile incident to lawful arrest (SITLA), an authority established by the Court almost thirty years earlier in New York v. Belton. The Court concluded Belton had evolved to a point that could no longer be justified by the underlying exigency rationale for SITLA, creating an automatic and unrestricted search authority whenever the police arrested an occupant or recent occupant of …

Arizona V. Gant: Decoding The Meaning Of Reasonable Belief, Geoffrey S. Corn

Geoffrey S. Corn

This article addresses the uncertainty created by the Supreme Court’s decision in Arizona v. Gant as to when police may search an automobile after the recent arrestee is secured and no longer able to access the vehicle. In Gant, the Court authorized such a search whenever the police have ‘reasonable belief’ evidence related to the crime of arrest may be in the automobile. However, the Court did not define the meaning of reasonable belief. This has led to various lower court interpretations, ranging from reasonable suspicion to probable cuase.

This article first explains why treating reasonable belief as synonymous with …

Two Sides Of The Combatant Coin: Untangling Direct Participation In Hostilities From Belligerent Status In Non-International Armed Conflicts, Geoffrey S. Corn, Christopher Jenks

Geoffrey S. Corn

TWO SIDES OF THE COMBATANT COIN: UNTANGLING DIRECT PARTICIPATION IN HOSTILITIES FROM BELLIGERENT STATUS IN NON-INTERNATIONAL ARMED CONFLICTS

GEOFFREY CORN& CHRIS JENKS

ABSTRACT:

Determining who qualifies as a lawful object of attack in contemporary military operations against non-state belligerents is an increasingly demanding challenge. While it is axiomatic that only persons who qualify as either belligerents or civilians taking a direct part in hostilities fall into this category, the nature, and indeed goal, of counter-insurgencies blurs the line between civilians protected from deliberate attack and belligerents subject to attack.

The difficulty in distinguishing the protected (civilians) from the unprotected (belligerents …

Targeting, Command Judgment, And A Proposed Quantum Of Proof Component: A Fourth Amendment Lesson In Contextual Reasonableness, Geoffrey S. Corn

Geoffrey S. Corn

No decision by a military commander engaged in hostilities has more profound consequence than the decision to launch an attack. Pursuant to the law of armed conflict (LOAC), that decision must be based on the judgment that the object of attack – a person, place, or thing - qualifies as a lawful military objective. This judgment almost always sets in motion the application of deadly combat power, and routinely produces loss of life or grievous bodily injury, often times to individuals and property not the intended object of attack, but considered ‘collateral damage.’ In operational terms, this judgment determines whether …

The Missing Miranda Warning: Why What You Don’T Know Really Can Hurt You, Geoffrey S. Corn

Geoffrey S. Corn

Abstract

The Missing Miranda Warning: Why What You Don’t Know Really Can Hurt You

Miranda – at least the core rule that statements made by suspects in response to custodial interrogation are admissible in the prosecution’s case-in-chief only following a knowing and voluntary waiver of the Miranda rights – has survived decades of attacks. While the “stormy seas” the decision navigated produced a wake of academic study of the wisdom of the decision, little attention has been focused on an equally logical question: did Miranda go far enough? If, as the Miranda Court emphasized, the purpose of Miranda’s warnings was …

The Missing Miranda Warning: Why What You Don’T Know Really Can Hurt You, Geoffrey S. Corn

Geoffrey S. Corn

Abstract The Missing Miranda Warning: Why What You Don’t Know Really Can Hurt You

Miranda – at least the core rule that statements made by suspects in response to custodial interrogation are admissible in the prosecution’s case-in-chief only following a knowing and voluntary waiver of the Miranda rights – has survived decades of attack. However, since the Supreme Court decided this seminal case, little attention has been focused on whether Miranda went far enough? If, as the Miranda Court emphasized, the purpose of Miranda warnings was to ensure criminal suspects were provided a meaningful opportunity to exercise their privilege against …

Triggering Congressional War Powers Notification: A Proposal To Reconcile Constitutional Practice With Operational Reality, Geoffrey S. Corn

Geoffrey S. Corn

In 1973, Congress overcame President Nixon’s veto to enact the War Powers Resolution. That law was intended to restore the Founder’s vision of cooperative war-making authority between the two political branches. Since that time, two areas of uncertainty have plagued the efficacy of the law: the arguable intrusion into the exclusive war-making authority of the President; and the uncertainty as to what events trigger the law’s obligations. In an effort to cure these defects, a group of experts recently proposed adoption of a substitute law: the War Powers Consultation Act of 2009. This proposed successor statute shifts the focus of …

Untying The Gordian Knott: A Proposal For Determining Applicability Of The Laws Of War To The War On Terror, Geoffrey S. Corn, Eric T. Jensen

Geoffrey S. Corn

One of the most difficult legal questions generated by the U.S. proclaimed Global War on Terror has been determining when, if at all, the laws of war apply to military operations directed against nonstate actors? This question has produced a multitude of answers from scholars, government officials, military legal experts, and even the Supreme Court of the United States. The only aspect of this question that would likely generate consensus among these diverse viewpoints is that the difficulty of applying a state-centric law triggering paradigm to a dispute that defies state-centric classification has created tremendous legal uncertainty.

While from a …

Untying The Gordian Knott: A Proposal For Determing Applicability Of The Laws Of War To The War On Terror, Geoffrey S. Corn, Eric T. Jensen

Geoffrey S. Corn

For the past six years, one of the most difficult questions related to law and war has been when do the laws of war apply to the war on terror? From 1949 through 2001, a state-centric law triggering paradigm evolved into almost an article of faith among the international legal and military community. The events of September 11th, 2001 however threw this paradigm into disarray. Since that time, the United States has struggled to articulate, and in many judicial challenges defend, how it could invoke the authorities of war without accepting the obligations of the law regulating war. Unfortunately, responding …