Military, War, and Peace Commons^™

Executive Power, Drone Executions, And The Due Process Rights Of American Citizens, Jonathan G. D'Errico

Fordham Law Review

Few conflicts have tested the mettle of procedural due process more than the War on Terror. Although fiery military responses have insulated the United States from another 9/11, the Obama administration’s 2011 drone execution of a U.S. citizen allegedly associated with al-Qaeda without formal charges or prosecution sparked public outrage. Judicial recognition that this nonbattlefield execution presented a plausible procedural due process claim ignited questions which continue to smolder today: What are the limits of executive war power? What constitutional privileges do American citizens truly retain in the War on Terror? What if the executive erred in its judgment and …

Co-Parenting War Powers: Congress's Authority To Escalate Conflicts, Russell A. Spivak

West Virginia Law Review

This article argues that Congress has the ability to force a President to escalate military intervention when he is otherwise unwilling to do so. The article begins by exploring the constitutional powers at Congress's disposal-the Declare War Clause, the Taxing and Spending Clause, and the Commander-in-Chief Clause-and their historical application. It then establishes that, under Justice Jackson's Youngstown framework, the Executive would be acting in Category Three, meaning that the President may "rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter." Citing multiple Article I clauses, this article argues that Executive action in …

Drawing The Lines In The Shifting Sands Of Cape Canaveral: Why Common Beach Erosion Should Not Yield A Compensable Taking Under The Fifth Amendment, Jeremy N. Jungreis

Florida State University Journal of Land Use and Environmental Law

No abstract provided.

Five Years Under The Veterans Judicial Review Act: The Va Is Brought Kicking And Screaming Into The World Of Meaningful Due Process, Lawrence B. Hagel, Michael P. Horan

Maine Law Review

I have been asked to give you the “veterans' perspective” on whether the Court of Veterans Appeals has served the purpose for which it was created by Congress and also to describe what additional steps the court might take to further the ends desired by veterans. This is no easy task. It is difficult not because I do not have a lot to say. It is difficult because it is a charge to speak, in a sense, for all veterans. In order to understand what I mean, I think it may be helpful to give you a little background on …

The Bergdahl Block: How The Military Limits Public Access To Preliminary Hearings And What We Can Do About It, Eric R. Carpenter

William & Mary Bill of Rights Journal

Sergeant Bowe Bergdahl and Private First Class Bradley (now Chelsea) Manning have something in common. Military officials unlawfully closed all or portions of their preliminary hearings to the public. When doing so, military officials exploited two unusual features of the military justice system, thereby denying the accused and the media of their respective Sixth Amendment and First Amendment rights to a public hearing.

The first feature is that the military justice system does not include a standing trial-level court. If there is a problem at the preliminary hearing, the accused and media have nowhere to go for help. The accused …

Military Officers And The Civil Office Ban, Stephen Vladeck

Indiana Law Journal

In the symposium Essay that follows, I aim to push back against this impression by introducing readers to an important—but little-known—constraint on the militarization of civilian government: the ban on active-duty military officers holding “civil office” codified today at 10 U.S.C. § 973(b). Like its far-better-known contemporary, the Posse Comitatus Act of 1878, the civil office ban was enacted after the Civil War as a means of limiting the ability of the military to exercise control over civilian matters. As the Ninth Circuit put it in 1975, its purpose was “to assure civilian preeminence in government, i.e., to prevent the …