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Ucmj Article 66(C) And The Case To End The Courts Of Criminal Appeals De Novo Review Of Factual Sufficiency, Matt C. Pinsker Sep 2013

Ucmj Article 66(C) And The Case To End The Courts Of Criminal Appeals De Novo Review Of Factual Sufficiency, Matt C. Pinsker

Matt C Pinsker

Under UCMJ Article 66(c), the military’s courts of criminal appeals have the unusual appellate power of conducting a de novo review of a trial court’s findings of fact. Congress gave the military’s appellate courts their unusual fact-finding powers in 1950 because under the original UCMJ, special and general courts-martials were highly unprofessional proceedings which were susceptible to command influence, creating the risk of unjustly convicting innocent servicemembers. Originally, there were not even judges presiding at summary courts-martials. Instead, a senior line officer untrained in law was designated president of the panel and was responsible for making legal decisions such as …


U.S. Judicial Independence: Victim In The “War On Terror”, Wayne Mccormack Aug 2013

U.S. Judicial Independence: Victim In The “War On Terror”, Wayne Mccormack

Wayne McCormack

One of the principal victims in the U.S. so-called "war on terror" has been the independence of the U.S. Judiciary. Time and again, challenges to assertedly illegal conduct on the part of government officials have been turned aside without addressing the merits, either because of overt deference to the Government or because of special doctrines such as state secrets and standing requirements. This paper catalogs the principal cases first by the nature of the government action challenged and then by the special doctrines invoked. The U.S. judiciary has virtually relinquished its valuable role of judicial review. In the face of …


Law-Of-War Perfidy, Sean Watts Jul 2013

Law-Of-War Perfidy, Sean Watts

Sean Watts

More than a prohibition of underhanded or dishonorable conduct, the prohibition of perfidy is an essential buttress to the law of war as a medium of exchange between combatants – a guarantee of minimum respect and trust between belligerents even in the turmoil of war. Indeed, it may be difficult to conceive of an operative or effective war convention at all without guarantees against and protections from perfidy. Yet most existing conceptions of perfidy, whether drawn from treaty, military legal doctrine, or legal scholarship, merely restate imprecise codifications or offer little more than a vague sensibility. This article offers detailed …


A Regime In Need Of A Balance: The Un Counter-Terrorism Regime Between Security And Human Rights, Isaac Kfir Jul 2013

A Regime In Need Of A Balance: The Un Counter-Terrorism Regime Between Security And Human Rights, Isaac Kfir

Isaac Kfir

Since 9/11, the UN’s counter-terrorism regime has developed two distinct approaches on combating international terrorism. The Security Council follows a traditional security doctrine that focuses on how to best protect states from the threat posed by international terrorists. This is largely due to the centrality of the state in Security Council thinking and attitudes. The General Assembly and the various UN human rights organs, influenced by the human security doctrine, have taken a more holistic, human rights-based approach to the threat of international terrorism. This paper offers a review of how the dichotomy above affects the application of UN policy …


A Maelstrom Of International Law And Intrigue: The Remarkable Voyage Of The S.S. City Of Flint, Andrew J. Norris Jul 2013

A Maelstrom Of International Law And Intrigue: The Remarkable Voyage Of The S.S. City Of Flint, Andrew J. Norris

Andrew Norris

No abstract provided.


U.S. Institutionalized Torture With Impunity: Examining Rape And Sexual Abuse In Custody Through The Icty Jurisprudence, Allison Rogne Jul 2013

U.S. Institutionalized Torture With Impunity: Examining Rape And Sexual Abuse In Custody Through The Icty Jurisprudence, Allison Rogne

Allison Rogne

It is a well-established principle, both domestically and internationally, that rape is torture when suffered as part of confinement. It is also well documented, both domestically and internationally, that rape is rampant in U.S. prisons. And it is well established, both domestically and internationally, that those who torture should not do so with impunity, that that impunity is an affront to civilization and the human rights principles to which we all strive. And yet, in U.S. prisons, shocking numbers of women are systematically raped and sexually abused by those that would rehabilitate them. Female prisoners are victims of vaginal and …


Lawfulness Of And The Case For Combat Drone Against Terrorism, Heeyong D. Jang Jun 2013

Lawfulness Of And The Case For Combat Drone Against Terrorism, Heeyong D. Jang

Heeyong D Jang

The proliferation and use of unmanned combat aerial vehicles (UCAVs) since the September 11 attack triggered lively academic debates. The discussion thus far, often tainted by illegitimate ad bellum-in bello conflation, falls short of justifying the lawfulness and effectiveness of combat drones. Combat drones can successfully discharge its obligation under the four-pronged jus in bello test – distinction, proportionality, necessity, and humanity. Furthermore, this state-of-the-art technology helps to achieve five important policy objectives of fighting asymmetric warfare, combating insurgents who disregard the existing law, deterring further acts of terrorism, dodging improvised explosive devices, and avoiding more costly military actions.


Combatant Immunity In Non-International Armed Conflict, Past And Future, Rymn J. Parsons Mar 2013

Combatant Immunity In Non-International Armed Conflict, Past And Future, Rymn J. Parsons

Rymn J Parsons, Esq.

No abstract provided.


The Duty To Make Amends To Victims Of Armed Conflict, Scott T. Paul Mar 2013

The Duty To Make Amends To Victims Of Armed Conflict, Scott T. Paul

Scott T Paul

In the past decade, calls for monetary payments by warring parties to the civilians they harm have become significantly louder and more prominent. The law of armed conflict permits parties to harm civilians, so long as the harm is not excessive to the concrete and direct military advantage they anticipate gaining through an attack. This paper examines the current state of international law regarding duties owed to victims suffering harm as a result of lawful combat operations and discusses the moral obligations owed to them by the parties who cause them harm. The paper notes that civilians who suffer incidental …


Kill-Lists And Accountability, Gregory S. Mcneal Mar 2013

Kill-Lists And Accountability, Gregory S. Mcneal

Gregory S. McNeal

This article is a comprehensive examination of the U.S. practice of targeted killings. It is based in part on field research, interviews, and previously unexamined government documents. The article fills a gap in the literature, which to date lacks sustained scholarly analysis of the accountability mechanisms associated with the targeted killing process. The article makes two major contributions: 1) it provides the first qualitative empirical accounting of the targeted killing process, beginning with the creation of kill-lists extending through the execution of targeted strikes; 2) it provides a robust analytical framework for assessing the accountability mechanisms associated with those processes. …


Targeting Killings Outside The Traditional Battlefield: The Legality Of Targeted Attacks On Transnational Armed Terrorists., Marti Sleister Feb 2013

Targeting Killings Outside The Traditional Battlefield: The Legality Of Targeted Attacks On Transnational Armed Terrorists., Marti Sleister

Marti Sleister

This paper asks whether traditional laws can evolve to protect citizens in the face of targeted killings on transnational-armed groups. The resolution analyzes how the current war methods fail to fit into the old mold of war; suggests what modifications could be made; and briefly discusses the fate of the laws of war should changes not occur. First, this paper will discuss the legal treaties defining and controlling the current laws of war, specifically, the Geneva Conventions and their Additional Protocols. Second, this paper will analyze how International Human Rights Law (IHRL) applies, particularly in light of the limitations of …


Direct Participation In Hostilities From Cyberspace, Collin Allan Feb 2013

Direct Participation In Hostilities From Cyberspace, Collin Allan

Collin Allan

As demonstrated by the cyber attacks against Georgia in 2008 and the cyber attacks against Aramco in 2012, civilians are increasing their participation in armed conflicts through cyber attacks. In 2009, the International Committee of the Red Cross (ICRC) published a document on how to determine when a civilian’s participation in armed conflict reaches the necessary level to render him or her targetable by one of the parties to the conflict. The Tallinn Manual was published this year to provide legal guidance in cyber situations. While professionals have written in this area previously, it is the first time that experts …


Terrorism And Associations, Ashutosh A. Bhagwat Feb 2013

Terrorism And Associations, Ashutosh A. Bhagwat

Ashutosh Bhagwat

The domestic manifestation of the War on Terror has produced the most difficult and sustained set of controversies regarding the limits on First Amendment protections for political speech and association since the anti-Communist crusades of the Red Scare and McCarthy eras. An examination of the types of domestic terrorism prosecutions that have become common since the September 11 attacks reveals continuing and unresolved conflicts between national security needs and traditional protections for speech and (especially) associational freedoms. Yet the courts have barely begun to acknowledge, much less address, these serious issues. In the Supreme Court’s only sustained engagement with these …


Cipa V. State Secrets: How A Few Mistakes Confused Two Important National Security Privileges, Elisa Poteat Feb 2013

Cipa V. State Secrets: How A Few Mistakes Confused Two Important National Security Privileges, Elisa Poteat

Elisa Poteat

No abstract provided.


The Structure Of Law-Of-War Perfidy, Sean Watts Feb 2013

The Structure Of Law-Of-War Perfidy, Sean Watts

Sean Watts

The structural role of law-of-war perfidy is widely unappreciated and misunderstood. More than a prohibition of underhanded or dishonorable conduct, the prohibition of perfidy is an essential buttress to the law of war as a medium of exchange between combatants – a guarantee of minimum respect and trust between belligerents even in the turmoil of war. Indeed, it may be difficult to conceive of an operative or effective war convention at all without guarantees against and protections from perfidy. Through the late nineteenth and twentieth centuries, the prohibition of perfidy matured from a broad, customary notion of chivalry and honorable …


Wasting Away: America’S Dysfunctional System Of Low-Level Radioactive Waste Disposal, Jacob Berman Jan 2013

Wasting Away: America’S Dysfunctional System Of Low-Level Radioactive Waste Disposal, Jacob Berman

Jacob Berman

This paper argues that the current system for disposing of civilian low-level radioactive waste in the United States is broken, and that large-scale reform is necessary to adequately handle the volume of waste expected from further nuclear decommissioning. Between 1947 and 1980, low-level radioactive waste disposal was the sole responsibility of the federal government. The Low-Level Radioactive Waste Policy Act of 1980 upended this system, devolving responsibility for civilian low-level radioactive waste disposal to the states. Devolution has been a disaster. For the last thirty years, state governments have been beset by Not In My Back Yard syndrome, as project …


International Law And Ungoverned Space, Matthew Hoisington Jan 2013

International Law And Ungoverned Space, Matthew Hoisington

Matthew Hoisington

Ungoverned spaces, strictly defined as “spaces not effectively governed by the state” exist all over the world, presenting particular difficulties to public international law, which is historically premised on sovereignty and state control. Examples of such spaces include cyberspace, south-central Somalia and the Federally Administered Tribal Areas along the Afghan-Pakistan border. These spaces destabilize the international system in novel ways—and they might also be dangerous. Many of the terrorism plots from the late twentieth and early twenty-first century emanated from “safe havens” afforded by ungoverned spaces. The lack of governance over certain spaces also raises concerns over development, including the …


Tracking Genocide: Persecution Of The Karen In Burma, Jay Milbrandt Jan 2013

Tracking Genocide: Persecution Of The Karen In Burma, Jay Milbrandt

Jay Milbrandt

For sixty years a civil war has raged in the jungles of Burma. One of the lingering questions asked by human rights advocates and the international community is to what extent war crimes have been committed and whether the actions by the Burma Army amount to genocide. Based on significant data collected in the field over the past decade, this article argues that forced displacement of the Karen ethnic group does arise to the international standard of genocide. Tracking Genocide explores the theory and application of genocidal intent through the inference of a systematic plan to destroy an ethnic group …


Immoral Waiver: Judicial Review Of Intra-Military Sexual Assault Claims, Francine Banner Jan 2013

Immoral Waiver: Judicial Review Of Intra-Military Sexual Assault Claims, Francine Banner

Francine Banner

This essay critiques the application of the Feres doctrine and the policy of judicial deference to military affairs in the context of recent class actions against government and military officials for constitutional violations stemming from sexual assaults in the U.S. military. The Pentagon estimates that 19,000 military sexual assaults occur each year. Yet, in 2011, fewer than two hundred persons were convicted of crimes of sexual violence. In the face of such pervasive and longstanding constitutional violations, this essay argues that the balance of harms weighs heavily in favor of judicial intervention. The piece discusses why, from both legal and …


Is Torture Justified In Terrorism Cases?: Comparing U.S. And European Views, Stephen P. Hoffman Jan 2013

Is Torture Justified In Terrorism Cases?: Comparing U.S. And European Views, Stephen P. Hoffman

Stephen P. Hoffman

This essay discusses issues of torture and some of the philosophical underpinnings. First, I define torture as it is used in international and human rights law. Then, I discuss three primary theories of torture: deontology, consequentialism, and threshold deontology. After setting this groundwork, I introduce particular issues in terrorism cases such as the “ticking bomb” scenario, which is often used to argue that torture may be appropriate and possibly required when done to save many lives. This invariably must include a discussion of the necessity doctrine, the legal doctrine allowing an individual to take extraordinary — even illegal — measures …


Humanity & National Security: The Law Of Mass Atrocity Response Operations, Keith A. Petty Dec 2012

Humanity & National Security: The Law Of Mass Atrocity Response Operations, Keith A. Petty

Keith A. Petty

As the world watches civilian slaughter in Syria, the United States is refining a whole of government approach to prevent and respond to genocide and other atrocity crimes. Military intervention under the recently developed concept of Mass Atrocity Response Operations (MARO) will certainly be included as part of any planning contingency, following diplomatic, economic, and multilateral actions. The current state of international law, however, only permits the use of force, to prevent atrocity crimes or for any other reason, if authorized by the UN Security Council (UNSC) or in self-defense. When the UNSC fails to act—as it has so often …