Law Commons^™

Updating Senator Borah: A Nuclear Kellogg-Briand Pact, David A. Koplow

Georgetown Law Faculty Publications and Other Works

In recognizing the legacy of Senator William E. Borah, the author shares his remarks from the Borah Symposium at the University of Idaho, about the Senator's personality and character, his contribution and later characterization to international law and national security, specifically the 1928 Kellogg-Briand Pact, and finally, a proposal to a modern reincarnation to the Kellogg-Briand Pact and the newer threats of this era.

Blinded By The Light: Resolving The Conflict Between Satellite Megaconstellations And Astronomy, David A. Koplow

Georgetown Law Faculty Publications and Other Works

The sudden emergence of large constellations of small satellites in low altitude orbits represents one of the most dramatic contemporary innovations in outer space. Promising low-cost, low-latency global communications and spectacular capacities for remote sensing of the Earth, these satellites will soon number in the tens of thousands, sponsored by diverse corporations and countries around the world. But this proliferation of spacecraft comes at a steep cost in unavoidable interference with ground-based astronomy: as the satellites overfly the observatories, they block the views of remote objects and phenomena, leaving obliterating white streaks on the collected imagery, and obscuring access to …

Humanitarianism As A Weapons System, David Luban

Georgetown Law Faculty Publications and Other Works

One important theme in Rosa Brooks’s How Everything Became War and the Military Became Everything is that in Iraq and Afghanistan the United States has increasingly given the military reconstruction tasks that seem more like civilian jobs. This is part of the pivot to a “hearts-and-minds” counter-insurgency strategy; but in larger part it reflects our great trust in our military and diminishing trust in civilian government. The result is a vicious circle: As resources shift from civilian agencies to the military doing similar jobs, the civilian agencies become less effective, which seems to vindicate the judgment that the military can …

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 forces in a military …

Of Spies, Saboteurs, And Enemy Accomplices: History’S Lessons For The Constitutionality Of Wartime Military Tribunals, Martin S. Lederman

Georgetown Law Faculty Publications and Other Works

Congress has recently authorized military commissions to try enemies not only for violations of the international law of war, but also for domestic-law offenses, such as providing material support to terrorism and conspiring to commit law-of-war offenses. Moreover, President Trump has indicated support for further military trials, including trials against U.S. citizens. Such military tribunals lack the civilian jury and independent judge that Article III of the Constitution prescribes. The constitutionality of such an abrogation of Article III’s criminal trial guarantees has been debated during many of the nation’s wars without clear resolution, and the constitutional question is now at …

Knowing When Not To Fight, David Luban

Georgetown Law Faculty Publications and Other Works

Should military personnel (“soldiers”) become selective conscientious objectors to an unjust war? This chapter argues, first, that in most cases the fog of war and politics makes it unreasonable to expect soldiers to make fact-intensive judgments about whether the war is just. Second, it argues that even a justwar tribunal, of the sort proposed by Jeff McMahan, will not do the job. It will inevitably lack the legitimacy and fact-finding capacity necessary to reassure soldiers in such a weighty decision. Third, the moral importance of maintaining civilian control of the military means that soldiers should generally obey orders to deploy. …

Red-Teaming Nlw: A Top Ten List Of Criticisms About Non-Lethal Weapons, David A. Koplow

Georgetown Law Faculty Publications and Other Works

Critics of non-lethal weapons (NL W) have asserted numerous complaints about the concepts, the Department of Defense research and development efforts, and the pace of innovation in the field. These critiques challenge the cost of the programs, their consistency with international law, the adverse public reaction to some of the devices, and the dangers of proliferation, among other points. This article summarizes the various assessments, in form of a "top ten list" of criticisms, and evaluates their weight. The author concludes that some of these points of objection have merit, but overall, the NLW enterprise is worthy of continuation and …

Human Rights Thinking And The Laws Of War, David Luban

Georgetown Law Faculty Publications and Other Works

In a significant early case, the ICTY commented: “The essence of the whole corpus of international humanitarian law as well as human rights law lies in the protection of the human dignity of every person…. The general principle of respect for human dignity is . . . the very raison d'être of international humanitarian law and human rights law.”

Is it true that international humanitarian law and international human rights law share the same “essence,” and that essence is the general principle of respect for human dignity? Is it true that, in the words of Charles Beitz, humanitarian law is …

Arendt On The Crime Of Crimes, David Luban

Georgetown Law Faculty Publications and Other Works

Genocide–-the intentional destruction of groups “as such”–-is sometimes called the “crime of crimes,” but explaining what makes it the crime of crimes is no easy task. Why are groups important over and above the individuals who make them up? Hannah Arendt tried to explain the uniqueness of genocide, but the claim of this paper is that she failed. The claim is simple, but the reasons cut deep.

Genocide, in Arendt’s view, “is an attack upon human diversity as such.” So far so good; but it is hard to square with Arendt’s highly individualistic conception of human diversity, which in her …

Is Military Justice Sentencing On The March? Should It Be? And If So, Where Should It Head? Court-Martial Sentencing Process, Practice, And Issues, James E. Baker

Georgetown Law Faculty Publications and Other Works

This article starts with a sketch of the military justice system to orient readers. Understanding that structure, the article then describes the sentencing process for special and general courts-martial. The article follows by identifying two core military sentencing questions: First, should commanders have authority to grant clemency? Second, should the military justice system adopt sentencing guidelines? With respect to each topic presented, the article does not attempt to answer the questions nor offer prescriptions. Rather, it seeks to identify the principal fault lines around which debate should, or will likely, fall. The article next presents ‘‘nutshell’’ introductions to additional sentencing …

Duck-Rabbits And Drones: Legal Indeterminacy In The War On Terror, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

In the days and weeks immediately following the 9/11 attacks, “the law” offered little to lawyers or policy-makers looking for guidance. Indeed, for many the events of 9/11 became the legal equivalent of a Rorschach test: depending on the observer, the 9/11 attacks were variously construed as criminal acts, acts of war, or something in between, thus fitting into (or triggering) any of several radically different legal regimes.

Divergent interpretations of the law are common, of course. Legal rules often contain an element of ambiguity, and the “facts” to which law must be applied can frequently be construed in multiple …

Unsatisfying Wars: Degrees Of Risk And The Jus Ex Bello, Gabriella Blum, David Luban

Georgetown Law Faculty Publications and Other Works

Self-defensive war uses violence to transfer risks from one’s own people to others. We argue that central questions in just war theory may fruitfully be analyzed as issues about the morality of risk transfer. That includes the jus ex bello question of when states are required to accept a ceasefire in an otherwise-just war. In particular, a “war on terror” that ups the risks to outsiders cannot continue until the risk of terrorism has been reduced to zero or near zero. Some degree of security risk is inevitable when coexisting with others in the international community, just as citizens within …

Nuclear Kellogg-Briand Pact: Proposing A Treaty For The Renunciation Of Nuclear Wars As An Instrument Of National Policy, David A. Koplow

Georgetown Law Faculty Publications and Other Works

This article performs three functions. First, it offers a revisionist interpretation of the 1928 Kellogg-Briand Pact, the much-maligned treaty through which the key powers of the era, led by the United States, undertook to “outlaw” war, renouncing it as a tool of national policy and committing themselves to resort exclusively to pacific means for the resolution of their international disputes. Because of Kellogg-Briand’s inability to prevent the outbreak of World War II, the treaty has been derided for decades as a futile, utopian illusion, but this article argues that it was, in fact, a tremendous success in altering states’ attitudes …

Humanitarian Intervention: Evolving Norms, Fragmenting Consensus (Remarks), Rosa Brooks

Georgetown Law Faculty Publications and Other Works

Traditionally, the evolution of customary international law was understood as a gradual process: in some idealized model, we might see first a few states, and then a few more, implicitly agreeing to follow a practice, and then we would gradually begin to see additional states doing the same thing. We would also gradually accumulate evidence that these various states are acting in such a way because they consider themselves legally bound to do so. Then, over time, we’ll see more and more states following suit both in word and deed, until at some point we can say with a great …

The Trickle-Down War, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

The history of the European nation-state, wrote political sociologist Charles Tilly, is inextricably bound up with the history of warfare. To oversimplify Tilly’s nuanced and complex arguments, the story goes something like this: As power-holders (originally bandits and local strongmen) sought to expand their power, they needed capital to pay for weapons, soldiers and supplies. The need for capital and new recruits drove the creation of taxation systems and census mechanisms, and the need for more effective systems of taxation and recruitment necessitated better roads, better communications and better record keeping. This in turn enabled the creation of larger and …

Cross-Border Targeted Killings: "Lawful But Awful"?, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

Since September 11, the United States has waged two very open wars in Afghanistan and Iraq. These two wars have killed nearly 7,000 U.S. military personnel and left some 50,000 American troops wounded; they have also left an unknown number of Iraqi and Afghan soldiers and civilians dead or wounded. But alongside these two costly and visible wars, the United States has also been waging what amounts to a third war.

This third war is a secret war, waged mostly by drone strikes, though it has also involved a smaller number of special operations raids. The author calls this third …

Civilians And Armed Conflict, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

We tend to view concern with the protection of civilians as a relatively recent development within the Security Council: a product of the late 20th century genocides and ethnic cleansing campaigns in Rwanda and the Balkans. But while it is indeed true that the Council’s first thematic resolution directly addressing “protection of civilians” was not passed until 1999—and also true, unfortunately, that Security Council civilian protection efforts have yet to move beyond the sporadic and inconsistent—the Council has always concerned itself with civilian protection. Indeed, the history of the Security Council itself (as well as the history of the United …

Pandemic Disease, Biological Weapons, And War, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

Over the past two decades, concern about the threat posed by biological weapons has grown. Biowarfare is not new. But prior to the recent trend, the threat largely centered on state use of such weapons. What changed with the end of the Cold War was the growing apprehension that materials and knowledge would proliferate beyond industrialized states’ control, and that “rogue states” or nonstate actors would acquire and use biological weapons. Accordingly, in 1993 senators Samuel Nunn, Richard Lugar, and Pete Dominici expanded the Cooperative Threat Reduction Program to assist the former Soviet republics in securing biological agents and weapons …

Gideon At Guantánamo, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

The right to counsel maintains an uneasy relationship with the demands of trials for war crimes. Drawing on the author’s personal experiences from defending a Guantánamo detainee, the Author explains how Gideon set a baseline for the right to counsel at Guantánamo. Whether constitutionally required or not, Gideon ultimately framed the way defense lawyers represented their clients. Against the expectations of political and military leaders, both civilian and military lawyers vigorously challenged the legality of the military trial system. At the same time, tensions arose because lawyers devoted to a particular cause (such as attacking the Guantánamo trial system) were …

Lessons For International Law From The Arab Spring, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

Not all that begins in hope ends in happiness. In Egypt, the exuberance of Tahrir Square has given way to frustration over the resilience of the security state; in Libya, the anti-Qaddafi movement has fractured along tribal and factional lines; in Syria, as of this writing, calls for reform continue to be met with gunfire from government forces. Throughout the Middle East—from Egypt, Libya and Syria to Yemen, Tunisia, Bahrain and elsewhere—the heady excitement of 2010 has given way to a more sober awareness that enduring political change may take years, if not generations. The Arab Spring brought both progress …

Breaking The Mexican Cartels: A Key Homeland Security Challenge For The Next Four Years, Carrie F. Cordero

Georgetown Law Faculty Publications and Other Works

Although accurate statistics are hard to come by, it is quite possible that 60,000 people have died in the last six-plus years as a result of armed conflict between the Mexican cartels and the Mexican government, amongst cartels fighting each other, and as a result of cartels targeting citizens. And this figure does not even include the nearly 40,000 Americans who die each year from using illegal drugs, much of which is trafficked through the U.S.-Mexican border. The death toll is only part of the story. The rest includes the terrorist tactics used by cartels to intimidate the Mexican people …

Drones And Cognitive Dissonance, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

There’s something about drones that makes sane people crazy. Is it those lean, futurist profiles? The activities drone technologies enable? Or perhaps it’s just the word itself–drone–a mindless, unpleasant, dissonant thrum. Whatever the cause, drones seem to produce an unusual kind of cognitive dissonance in many people.

Some demonize drones, denouncing them for causing civilian deaths or enabling long-distance killing, even as they ignore the fact that the same (or worse) could be said of many other weapons delivery systems. Others glorify them as a low-cost way to “take out terrorists,” despite the strategic vacuum in which most …

Reflections On Kony 2012, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

In spring 1997, few people outside Uganda had heard of the Lord’s Resistance Army (LRA). The LRA arose in the late 1980s out of the ashes of Alice Lakwena’s Holy Spirit Movement, and over the next decade, LRA raids killed thousands of villagers in Northern Uganda. Hundreds of thousands were displaced, and an estimated 10,000 children were forcibly abducted by the LRA and brutally coerced into becoming killers, sex slaves or both. But in the spring of 1997, the LRA had yet to make CNN.

The Taint Of Torture: The Roles Of Law And Policy In Our Descent To The Dark Side, David Cole

Georgetown Law Faculty Publications and Other Works

Was the Bush administration’s decision to employ “enhanced interrogation techniques” a mistake of policy, a violation of law, or both? This essay responds to Philip Zelikow’s insider account of how the decision to use these techniques was reached. The author suggests that while Zelikow makes a strong case that the decision to authorize the CIA to use coercive interrogation tactics was a mistaken policy judgment, it is important not to lose sight of the fact that it was also illegal. The latter conclusion demands a different response than the former. In particular, it underscores the necessity for accountability. The author …

Libya: A Multilateral Constitutional Moment?, Catherine Powell

Georgetown Law Faculty Publications and Other Works

The Libya intervention of 2011 marked the first time that the UN Security Council invoked the “responsibility to protect” principle (RtoP) to authorize use of force by UN member states. In this comment the author argues that the Security Council’s invocation of RtoP in the midst of the Libyan crisis significantly deepens the broader, ongoing transformation in the international law system’s approach to sovereignty and civilian protection. This transformation away from the traditional Westphalian notion of sovereignty has been unfolding for decades, but the Libyan case represents a further normative shift from sovereignty as a right to sovereignty as a …

Be Careful What You Wish For: Changing Doctrines, Changing Technologies And The Lower Cost Of War, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

The collective security structure created by the U.N. Charter is becoming shakier than ever, and two recent trends pose particular challenges to Charter rules on the use of force. The first trend involves a normative shift in understandings of state sovereignty, and the second trend involves improvements in technology--specifically, the rapid evolution of unmanned aerial vehicles, precision weapons, and surveillance technologies. Each trend on its own raises difficult issues. Together, they further call into question international law’s ability to meaningfully constrain the use of force by states.

Military Lawyers And The Two Cultures Problem, David Luban

Georgetown Law Faculty Publications and Other Works

Military and humanitarian lawyers approach the laws of war—labeled “law of armed conflict” by the former and “international humanitarian law” by the latter—in very different ways. For military lawyers, the starting point is military necessity, and the reigning assumption is that legal regulation of war must accommodate military necessity. For humanitarian lawyers, the starting point is human dignity and human rights. This article argues that from these radically different axioms legal consequences systematically follow regarding treaty interpretation, the sources and reach of customary international law, the nature of international law, deference and discretion to military commanders, and the connection between …

Lessons From Social Psychology For Complex Operations, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

This short essay looks at several social forces that powerfully affect human behavior, often trumping individual “character,” personality, knowledge, and even deeply held moral beliefs. Specifically, this essay looks briefly at issues of obedience, conformity, and group polarization, discussing the ways in which they can affect and distort individual behavior. Ultimately, this essay suggests, understanding these dynamics can have important implications for how we think about counterinsurgency and stability operations.

Train Wreck: The U.S. Violation Of The Chemical Weapons Convention, David A. Koplow

Georgetown Law Faculty Publications and Other Works

The 1993 Chemical Weapons Convention (CWC) is one of the most important multilateral arms control instruments; it requires its 188 parties to refrain from producing, acquiring, retaining or using chemical weapons (CW) and to destroy their existing CW stockpiles by a fixed date. The United States and Russia declared the possession of the world’s largest CW inventories and have been working assiduously to incinerate, chemically neutralize or otherwise dispose of their respective caches. Unfortunately, neither country met the treaty’s April 29, 2012 final, non-extendable deadline. The United States managed to destroy 90% of its CW stocks on time, but under …

Biodefense And Constitutional Constraints, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The United States and United Kingdom have different approaches to quarantine law that reflect each country’s unique historical context and constitutional structure. Under the Tudors, England vested quarantine authority in the monarch, with its subsequent exercise conducted by the military. As the constitutional structure changed, the manner in which quarantine was given effect subtly shifted, leading to constitutional reforms. Authorities transferred first to the Privy Council and, subsequently, to Parliament, where commercial interests successfully lobbied them out of existence. By the end of the 19th Century, quarantine authorities had been pushed down to the local port authorities. In the United …