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The Operational And Administrative Militaries, Mark P. Nevitt 2018 University of Pennsylvania Law School

The Operational And Administrative Militaries, Mark P. Nevitt

Faculty Scholarship

This Article offers a new way of thinking about the military. The U.S. military’s existing legal architecture arose from tragedy: in response to operational military failures in Vietnam, the 1980 failed Iranian hostage rescue attempt and other military misadventures, Congress revamped the Department of Defense (DoD)’s organization. The resulting law, the Goldwater-Nichols Act, formed two militaries within the DoD that endure to this day. These two militaries – the operational military and the administrative military – were once opaque to the outside observer but have emerged from the shadows in light of recent conflicts. The operational military remains the ...


The Bergdahl Block: How The Military Limits Public Access To Preliminary Hearings And What We Can Do About It, Eric R. Carpenter 2018 College of William & Mary Law School

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 ...


Reforming The Pentagon: Reflections On How Everything Became War And The Military Became Everything, Mark P. Nevitt 2018 University of Pennsylvania Law School

Reforming The Pentagon: Reflections On How Everything Became War And The Military Became Everything, Mark P. Nevitt

Faculty Scholarship

What best explains how “Everything Became War and the Military Became Everything?”— the provocative title of a recent book by Professor Rosa Brooks of Georgetown Law. In this Essay, I turn to the Department of Defense’s (DoD) unique agency design as the vehicle to address this question. Specifically, I first describe and analyze the role that the 1947 National Security Act and 1986 Goldwater-Nichols Act play in incentivizing organizational behavior within the DoD. These two Acts have broad implications for national security governance. Relatedly, I address the consequences of these two core national security laws, focusing on the rise ...


Where Have All The Soldiers Gone? Observations On The Decline Of Military Veterans In Government, Donald N. Zillman 2018 University of Maine School of Law

Where Have All The Soldiers Gone? Observations On The Decline Of Military Veterans In Government, Donald N. Zillman

Maine Law Review

This Essay examines the consequences of the growing decline in the number of military veterans in positions of leadership in the federal government, most particularly in the United States Congress. In its visible form, this issue has given rise to popular debate in the last three presidential elections. Did Dan Quayle pull strings to get a safe post in the Indiana National Guard to avoid Vietnam service? Did Bill Clinton improperly evade the draft during Vietnam? Were veterans George Bush or Bob Dole better qualified to be President because of their combat service in World War II? In its less ...


Is It Just Dessert? Female Recruits Don't Get Their Fair Share Of The Pie: The Marine Corps Fights Gender Integration Of Basic Training, Violating Equal Protection Standards And Cultivating A Culture Where Female Recruits Are Left Out Of The "Brotherhood", Maria Brekke 2018 University of Minnesota Law School

Is It Just Dessert? Female Recruits Don't Get Their Fair Share Of The Pie: The Marine Corps Fights Gender Integration Of Basic Training, Violating Equal Protection Standards And Cultivating A Culture Where Female Recruits Are Left Out Of The "Brotherhood", Maria Brekke

Law & Inequality: A Journal of Theory and Practice

No abstract provided.


The Law (?) Of The Lincoln Assassination, Martin S. Lederman 2018 Georgetown University Law Center

The Law (?) Of The Lincoln Assassination, Martin S. Lederman

Georgetown Law Faculty Publications and Other Works

Shortly after John Wilkes Booth killed Abraham Lincoln on April 14, 1865, President Andrew Johnson directed that Booth’s alleged coconspirators be tried in a makeshift military tribunal, rather than in the Article III court that was open for business just a few blocks from Ford’s Theater. Johnson’s decision implicated a fundamental constitutional question that was a subject of heated debate throughout the Civil War: When, if ever, may the federal government circumvent Article III’s requirements of a criminal trial by jury, with an independent, tenure-protected presiding judge, by trying individuals other than members of the armed ...


Reimagining The Scope Of Children’S Legal Protection During Armed Conflicts Under International Humanitarian Law And International Criminal Law, Anaise Muzima 2018 Western University

Reimagining The Scope Of Children’S Legal Protection During Armed Conflicts Under International Humanitarian Law And International Criminal Law, Anaise Muzima

Western Journal of Legal Studies

This paper calls for a clarification of the law and a re-evaluation of the status of children who are participating in hostilities by highlighting that any fruitful debate on child soldiers needs to go beyond the binary and limited discussion on whether such children are merely victims or perpetrators. The author focuses on the principles defined by International Humanitarian Law and International Criminal Law as to the distinction between “direct” and “active” participation to hostilities and argues that such distinction is ambiguous and inapplicable to the specific context of child soldiering. This paper concludes by emphasizing the necessity to reimagine ...


Tracing The American State Of Exception From The George W. Bush, Barack Obama, And Donald Trump Presidencies, Arthur Percy Sherwood 2018 Western University

Tracing The American State Of Exception From The George W. Bush, Barack Obama, And Donald Trump Presidencies, Arthur Percy Sherwood

Western Journal of Legal Studies

The state of exception has come to weaken the rule of law; that is, it has enabled the sovereign to not only increase its political power but to suspend the law itself. This investigation demonstrates how the post–9/11 state of exception (or of emergency, necessity, or martial law) is increasingly used as the basis of contemporary American governance. This form of governance has been intensified since 9/11 by suspending normal rules and procedures and replacing them with extrajudicial measures that unduly jeopardize fundamental freedoms. The first section develops a framework for the state of exception that draws ...


Double-Tap Warfare: Should President Obama Be Investigated For War Crimes?, Samuel Alexander 2018 University of Florida Levin College of Law

Double-Tap Warfare: Should President Obama Be Investigated For War Crimes?, Samuel Alexander

Florida Law Review

A “double-tap” drone strike involves bombing a target, waiting a period of five to twenty minutes, often during which first responders arrive, and then bombing the target a second or even third time. This Note argues that such attacks, by virtue of their indiscriminate nature, are likely serious violations of Common Article 3 of the Geneva Conventions of 1949, which prohibits targeting civilians, the wounded, or those placed hors de combat. Thus, such attacks are likely war crimes under international law and under the War Crimes Act of 1996, a U.S. law that criminalizes carrying out, or ordering to ...


Litigating Genocide: A Consideration Of The Criminal Court In Light Of The German Jew's Legal Response To Nazi Persecution, 1933-1941, Jody M. Prescott 2018 University of Maine School of Law

Litigating Genocide: A Consideration Of The Criminal Court In Light Of The German Jew's Legal Response To Nazi Persecution, 1933-1941, Jody M. Prescott

Maine Law Review

After years of negotiation, a majority of the nations of the world have agreed to create an International Criminal Court. It will be given jurisdiction over three core types of offenses: genocide, crimes against humanity, and war crimes. With regard to war crimes, however, nations that join the court may take advantage of an “opt-out” procedure, whereby the court's jurisdiction over these offenses may be rejected for seven years after the court comes into existence. For various reasons, a small number of nations, including the United States, have refused to sign the treaty creating the court. While heralded as ...


Why A President Cannot Authorize The Military To Violate (Most Of) The Law Of War, John C. Dehn 2018 College of William & Mary Law School

Why A President Cannot Authorize The Military To Violate (Most Of) The Law Of War, John C. Dehn

William & Mary Law Review

Waterboarding and “much worse,” torture, and “tak[ing] out” the family members of terrorists: President Trump endorsed these measures while campaigning for office. After his inauguration, Trump confirmed his view of the effectiveness of torture and has not clearly rejected other measures forbidden by international law. This Article therefore examines whether a President has the power to order or authorize the military to violate international humanitarian law, known as the “law of war.” Rather than assess whether the law of war generally constrains a President as Commander-in-Chief, however, its focus is the extent to which Congress requires the U.S ...


The Theory And Practice At The Intersection Between Human Rights And Humanitarian Law, Monica Hakimi 2018 University of Michigan Law School

The Theory And Practice At The Intersection Between Human Rights And Humanitarian Law, Monica Hakimi

Reviews

The United States is more than fifteen years into a fight against terrorism that shows no sign of abating and, with the change in administration, appears to be intensifying. Other Western democracies that have historically been uneasy about U.S. counterterrorism policies have, in recent years, shifted toward those policies. And armed nonstate groups continue to commit large-scale acts of violence in multiple distinct theaters. The legal issues that these situations present are not entirely new, but neither are they going away. Recent publications, like the three works under review, thus provide useful opportunities to reflect on and refine our ...


Silent War: Applicability Of The Jus In Bello To Military Space Operations, Kubo Mačák 2018 University of Exeter

Silent War: Applicability Of The Jus In Bello To Military Space Operations, Kubo Mačák

International Law Studies

There are no molecules of air that could carry sound waves in the vacuum of outer space. Accordingly, space warfare may well become the first type of war whose signature sound would be—silence. But does the law of armed conflict (jus in bello) fall silent in times of Silent War? This article addresses the uncertainty at the heart of this issue. First, it delineates the relevant conceptual framework by examining the factual notion of “military space operations,” and its relationship with the legal concept of “armed conflict,” as well as the overlap between the potentially applicable bodies of law ...


Technical Fouls: Adjudicating Statutory Violations With Equitable Resolutions, Antonio G. Fraone 2018 Boston College Law School

Technical Fouls: Adjudicating Statutory Violations With Equitable Resolutions, Antonio G. Fraone

Boston College Environmental Affairs Law Review

In Weinberger v. Romero-Barcelo, the United States Supreme Court allowed for an equitable resolution to a lawsuit seeking immediate enforcement, by injunction, of the Federal Water Pollution Control Act (“FWPCA”). In this case, the United States Navy violated the FWPCA by discharging munitions—a pollutant as defined by the statute—during training exercises into the waters surrounding the Island of Vieques. The Navy also failed to obtain a National Pollution Discharge Elimination System permit, which would have made the discharge lawful under the statute. The people of Puerto Rico sought to enjoin the training exercises through the FWPCA. The Navy ...


International Coalitions And Non-Militarily Contributing Member States: A Perspective From Panama’S Practice And The Law Of Neutrality, Alonso E. Illueca 2018 University of Miami Law School

International Coalitions And Non-Militarily Contributing Member States: A Perspective From Panama’S Practice And The Law Of Neutrality, Alonso E. Illueca

University of Miami Inter-American Law Review

The military actions of an International Coalition and the role of its non-military contributing member States is yet another fundamental example of international practice concerning conflation between jus ad bellum and jus in bello. Although International Law proscribes the use of force in international relations, membership in an International Coalition engaged in military operations does not come without a cost. Non-military contributing member States may be regarded as co-belligerents or neutral States violating the laws of neutrality. This article argues that mere membership in a coalition does not amount to co-belligerency. Nevertheless, it claims that membership could entail a violation ...


Justice Against Sponsors Of Terrorism: Why Suing Terrorists May Not Be The Most Effective Way To Advance United States Foreign Policy Objectives, Drew Watkins 2018 University of Kentucky College of Law

Justice Against Sponsors Of Terrorism: Why Suing Terrorists May Not Be The Most Effective Way To Advance United States Foreign Policy Objectives, Drew Watkins

Kentucky Law Journal

No abstract provided.


The Corporate Governance Of National Security, Andrew Verstein 2018 Wake Forest University School of Law

The Corporate Governance Of National Security, Andrew Verstein

Washington University Law Review

At hundreds of companies, the government installs former spies and military officers to run the business without shareholder oversight, putting security before profits in order to protect vital projects from potentially treasonous influences. Through procedures I call “National Security Corporate Governance,” corporate boardrooms have quietly become instruments of national defense, marrying the efficiency norms of corporate law and the protective ambitions of national security. How is this achieved, and how successfully? Using a variety of research approaches – including Freedom of Information Act (FOIA) requests, archival searches, telephone interviews, and in-person conversations with industry insiders – this Article illuminates a secretive government ...


The Aba Rule Of Law Initiative Celebrating 25 Years Of Global Initiatives, M. Margaret McKeown 2018 United States Court of Appeals for the Ninth Circuit

The Aba Rule Of Law Initiative Celebrating 25 Years Of Global Initiatives, M. Margaret Mckeown

Michigan Journal of International Law

Relying on extensive reports, program documentation, and interviews with important actors in the rule of law movement, this article will explore how one key player in the international-development field—the ABA—has furthered rule of law values through its global programs. The first half of the article surveys the ABA’s involvement in rule of law initiatives. Part I explores the origins of the ABA’s work in this field, which date back to the organization’s founding and took shape after the demise of the former Soviet Union. Part II surveys the expansion of the ABA’s programs beyond ...


Patterns Of Civilian And Child Deaths Due To War-Related Violence In Syria: A Comparative Analysis From The Violation Documentation Center Dataset, 2011-16, Debarati Guha-Sapir, Benjamin Schluter, Jose Manuel Rodriguez-Llanes, Louis Lillywhite, Madelyn J. Hsiao-Rei Hicks 2018 Université catholique de Louvain

Patterns Of Civilian And Child Deaths Due To War-Related Violence In Syria: A Comparative Analysis From The Violation Documentation Center Dataset, 2011-16, Debarati Guha-Sapir, Benjamin Schluter, Jose Manuel Rodriguez-Llanes, Louis Lillywhite, Madelyn J. Hsiao-Rei Hicks

Open Access Articles

BACKGROUND: Since March, 2011, the Syrian civil war has lowered life expectancy by as much as 20 years. We describe demographic, spatial, and temporal patterns of direct deaths of civilians and opposition combatants from conflict-related violence in 6 years of war.

METHODS: We analysed conflict-related violent deaths with complete information on date, place, and cause of death and demographic group occurring from March 18, 2011, to Dec 31, 2016, recorded by the Violation Documentation Center (VDC). We included civilian and combatant deaths in all Syrian governorates, excluding government-controlled areas. We did not include detainees and missing persons, nor deaths from ...


Targeted Capture, Alexander K.A. Greenawalt 2018 Elisabeth Haub School of Law at Pace University

Targeted Capture, Alexander K.A. Greenawalt

Pace Law Faculty Publications

This Article confronts one of the most difficult and contested questions in the debate about targeted killing that has raged in academic and policy circles over the last decade. Suppose that, in wartime, the target of a military strike may readily be neutralized through nonlethal means such as capture. Do the attacking forces have an obligation to pursue that nonlethal alternative? The Article defends the duty to employ less restrictive means (“LRM”) in wartime, and it advances several novel arguments in defense of that obligation. In contrast to those who look to external restraints--such as those imposed by international human ...


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