Law Commons^™

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

Faculty Publications & Other Works

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. military to …

American Military Justice: Responding To The Siren Songs For Reform, David A. Schlueter

Faculty Articles

Today, the American military justice system is being subjected to sweet and enticing calls for reform. At first hearing, the well-intentioned proposed reforms appeal to a sense of justice. On closer examination, however, those proposed reforms threaten the essence and functionality of an effective and efficient system of criminal justice that is applied in world-wide settings, in both peacetime and in war.

In the last several decades, an increasing number of commentators have recommended reforms to virtually every component of the military system. The most recent round of proposals arose from frustration and anger that many feel towards the military’s …

Self-Interest Or Self-Inflicted? How The United States Charges Its Service Members For Violating The Laws Of War, Chris Jenks

Faculty Journal Articles and Book Chapters

This chapter explores the aspects of self-interest implicated by the US military prosecuting its own service members who violate the laws of war under different criminal charges than it prosecutes enemy belligerents who commit substantially similar offences. The chapter briefly explains how the US asserts criminal jurisdiction over its service members before turning to how the US military reports violations of the laws of war. It then sets out the US methodology for charging such violations as applied to its service members, and compares this methodology to that applied to those tried by military commissions. The chapter then discusses the …

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 …

The Rule Of Law And The Military Commission, Stephen J. Ellmann

Articles & Chapters

This essay examines the underlying foundations of the Supreme Court's decision in Hamdan v. Rumsfeld. After laying out many of the features of the conflicting positions taken by the majority and dissents in the case, the article argues that the majority's judgment was by no means determined by the plain meaning of the statutory provisions at issue, nor even by the Steel Seizure framework of overlapping zones of executive and legislative power. Instead, three factors deserve special emphasis. The first is the Court's effort to protect, and catalyze, Congressional authority. The second is the Court's understanding of its own role …

Fear, Weak Legs, And Running Away: A Soldier's Story, William Miller

Book Chapters

Statutes make for appallingly tedious reading unless primitively short and to the point as, for example, this provision in the early Kentish laws of Æthelberht (c. 600): “He who smashes a chin bone [of another] shall pay 20 shillings” or this one from King Alfred (c. 890): “If anyone utters a public slander, and it is proved against him, he shall make no lighter amends than the carving out of his tongue.”1 Yet on very rare occasion a modern statute can rivet our attention and when it does, it seems to do so by mimicking some of the look and …

Gays And Lesbians In The Military: A Rationally Based Solution To A Legal Rubik’S Cube, David A. Schlueter

Faculty Articles

This article addresses legislation which was an attempt to accommodate homosexuals serving in the military. The author concludes that Congress had a rational basis for adopting a policy of limited accommodation. The issue of homosexuals in the armed forces presented Congress with a significant challenge to the exercise of its constitutionally-based powers to regulate the military. Prior to the enactment of the “don’t ask, don’t tell” policy, homosexuals were banned from service in the United States military. Congress had the option to continue the ban on homosexuals in the military, become fully accommodating by allowing them to serve openly, or …

When Soldiers Are Defendants, David A. Schlueter

Faculty Articles

In O’Callahan v. Parker, the U.S. Supreme Court adopted a “service connection” requirement for court-martial subject matter jurisdiction. For almost two decades that requirement caused numerous problems of interpretation and application. In Solorio v. United States, the Court overruled its decision in O’Callahan. While assigned to a Coast Guard unit in Juneau, Alaska, the accused committed numerous acts of sexual abuse against two minor daughters of other Coast Guard members. The crimes were not discovered, however, until after he had been transferred to Governors Island, New York, where he committed additional acts of sexual abuse on other daughters of Coast …

Personal Jurisdiction Under Article 2, Ucmj Whither Russo, Catlow, And Brown?, David A. Schlueter

Faculty Articles

The question of personal jurisdiction for military courts in cases of invalid enlistment creates several legal issues. Invalid enlistment cases exist in a legal gray area due to the uncertainty of whether the cases should be tried by civilian or military courts. The age and competence of the enlistee are material to determining jurisdiction. The conduct of the recruiter directly affects whether the enlistee was competent. Congress amended Article 2 of the Uniform Code of Military Justice in order to address these problems. The amendment resolves many of the lingering jurisdictional issues created by Russo and Brown, but fails to …

Military Justice Without Military Control, Edward F. Sherman

Articles by Maurer Faculty

No abstract provided.

Congressional Proposals For Reform Of Military Law, Edward F. Sherman

Articles by Maurer Faculty

The current political and constitutional controversy surrounding military justice has resulted in considerable legislative activity. In the following article, Professor Sherman compares the Bayh, Bennett, Hatfield, Price, and Whalen proposed amendments to the Uniform Code of Military Justice, and offers his assessment of the need for change.

The Right To Competent Counsel In Special Courts Martial, Edward F. Sherman

Articles by Maurer Faculty

The special court martial is the intermediate court of the Armed Forces, with jurisdiction over any noncapital offense under the Uniform Code of Military Justice. Counsel in special court martial cases need not be lawyers, and in fact few of them are in special courts martial of the Army and the Navy. Mr. Sherman argues that the time has come to change this practice and ensure that servicemen are always represented by competent lawyers at such trials.