Law Commons^™

Delegating Climate Authorities, Mark P. Nevitt

Faculty Articles

The science is clear: the United States and the world must take dramatic action to address climate change or face irreversible, catastrophic planetary harm. Within the U.S.—the world’s largest historic emitter of greenhouse gas emissions—this will require passing new legislation or turning to existing statutes and authorities to address the climate crisis. Doing so implicates existing and prospective delegations of legislative authority to a large swath of administrative agencies. Yet congressional climate decision-making delegations to any executive branch agency must not dismiss the newly resurgent nondelegation doctrine. Described by some scholars as the “most dangerous idea in American law,” the …

The Commander In Chief's Authority To Combat Climate Change, Mark P. Nevitt

Faculty Articles

This Article first outlines the myriad national security threats posed by a changing climate, addressing the President’s and Congress’s powers to plan, study, and invest in climate-resilient infrastructure at military installations that are vulnerable to a rise in sea levels. Second, this Article asserts that climate change will stress and test persistent separation of powers concerns at home and abroad. Specifically, the President has less authority to protect military infrastructure domestically in the face of congressional intransigence, but has comparably greater authority as Commander in Chief to respond to climate-induced events abroad. Third, this Article argues that the threat of …

Defending The Environment: A Mission For The World's Militaries, Mark P. Nevitt

Faculty Articles

Critics often fault the U.S. military for its environmental stewardship, and legal scholarship frequently highlights efforts by the military· to seek national security exemptions from various environmental laws and the military's poor cleanup record Yet the Department of Defense ("DoD '') is largely subject to and complies with the fall array of American environmental laws in the same manner and extent as any agency of the federal government. While the military 's environmental record is far from perfect, a comparative legal survey shows that the U.S. is at the relative forefront of effectively balancing environmental stewardship with national security.

This …

Father, Son, And Constitution: How Justice Tom Clark And Attorney General Ramsey Clark Shaped American Democracy, By Alexander Wohl (Book Review), Vincent R. Johnson

Faculty Articles

In Father, Son, and Constitution, Alexander Wohl brings to life two major figures of American law: Tom C. Clark and his son, Ramsey Clark. The story focuses primarily on the middle third of the twentieth century and the many heated constitutional challenges that arose during that era.

With an engaging literary style, Wohl perceptively examines not merely the lives and careers of Tom and Ramsey Clark, but the key roles they played in the issues of their day. The story proceeds from Pearl Harbor and World War II, to the Cold War, to desegregation, to the problems that beset President …

Targeted Killing - Death By Drone, Jeffrey F. Addicott

Faculty Articles

Following the targeted killing of American born al-Qa’eda leader, Anwar al -Awlaki, targeted killings of American citizens has been a hotly contested issue. A targeted killing is defined as the “intentional, premeditated and deliberate use of lethal force, by states or their agents acting . . . against a specific individual who is not in the physical custody of the perpetrator.” The rule of law that justifies a state killing another human rests in either the law of war or the legal right of self-defense.

The term targeted killing is most often associated with the use of Unmanned Aerial Vehicles …

Cyber Security And The Government/ Private Sector Connection, Jeffrey F. Addicott

Faculty Articles

The United States does not possess a sufficient cyber security framework. Over eighty-five percent of the critical infrastructure in the United States is controlled by private industry. The greatest concern is an intentional cyber attack against electronic control systems that regulate thousands of interconnected computers, routers, and switches. The centralized computer networks controlling the U.S. infrastructure presents tempting targets.

Generally, there are four types of cyber attacks. First, the most common, is service disruption—which aims to flood the target computer with data packets or connection requests, thereby making it unavailable to the user. The second type is designed to capture …

Calls For National Identity Card To Halt Illegal Immigration, Jeffrey F. Addicott

Faculty Articles

Rising concerns for security and integrity have caused the federal government to revisit the issue of who is allowed into the United States. Each year, tens of millions of visas are granted to foreign nationals for reasons varying from education, travel, to even conducting business. Of paramount concern is that about forty percent of the nation’s undocumented immigrants are those who have overstayed their visas. While millions overstay their visas, millions more continue to pour across an open border from Mexico. One proposal made by the Senate to halt or slow illegal immigration is the creation of a national identity …

The Protect America Act Of 2007: A Framework For Improving Intelligence Collection In The War On Terror, Jeffrey F. Addicott, Michael T. Mccaul

Faculty Articles

The most important weapon in the War on Terror is intelligence. The Protect America Act of 2007, a modification of the Foreign Intelligence Surveillance Act (FISA), was favored by Congress for providing a positive framework for ensuring the proper rule of law kept pace with changes in technology. FISA closed the intelligence gaps that had arisen because of the application of the Act to foreign persons in foreign countries.

FISA codifies in federal law the procedures associated with how electronic surveillance and searches of acquisition of foreign intelligence is conducted. In order to conduct electronic surveillance, a court order must …

The Glass Half-Full: A Rational/Radical Approach To Immigration Reform, Bill Piatt

Faculty Articles

The problems the United States faces in redirecting immigration policies cannot be successfully addressed by a quick fix immigration “reform.” The legal, economic, sociological, political, racial, and moral issues are too complex and have been largely unresolved. As a result, it is unrealistic to expect political leaders to develop an easy solution that will satisfy the myriad competing and conflicting concerns.

Most of the calls for reform are not issued by individuals completely aware of the extent of immigration regulation and of its impact on American society. Rather, calls come from those with relatively narrow interests from all ranges of …

The Misuse Of Religion In The Global War On Terrorism, Jeffrey F. Addicott

Faculty Articles

A brief review of human history reveals that various individuals, groups and nations have used religious dogma as a pretext to engage in aggression against others. As such, it is no surprise that the Islamic radicalism that fuels the Global War on Terrorism employs what it calls the “true” Moslem religion in order to cloak a lust for domination through despicable expressions of unlawful violence, primarily targeting innocent civilians.

On the other hand, when it comes to confronting the forces of al-Qa’eda-styled aggression, it is not surprising that democracies like the United States also employ religious ideology and symbolism to …

Transcript Of Weapons Of Mass Destruction, National Security, And A Free Press: Seminal Issues As Viewed Through The Lens Of The Progressive Case, David Rudenstine, James R. Schlesinger, Norman Dorsen, Robert E. Cattanach, Brady Williamson, Frank Tuerkheimer, Howard Morland, Gary Milhollin, Anthony Lewis

Faculty Articles

No abstract provided.

Law And Bioterrorism By Victoria Sutton (Book Review), Jeffrey F. Addicott

Faculty Articles

The best primer for constructing a legal framework surrounding bioterrorism is a wonderfully researched and incisive book by Professor Victoria Sutton. Sutton brings a vast background of experience and expertise to her book, titled Law and Bioterrorism, which is in fact the first legal textbook in the field of law and bioterrorism.

The book begins with a brief examination of the history of law and bioterrorism, from ancient biological warfare to modern times. Drawing upon the lessons of this history, Sutton discusses historical events such as the use of anthrax in World War I, and further examines the rapidly growing …

Into The Star Chamber: Does The United States Engage In The Use Of Torture Or Similar Illegal Practices In The War On Terror, Jeffrey F. Addicott

Faculty Articles

Because of the dangers presented by al-Qaeda style terrorism, the United States has crafted a variety of robust anti-terrorism responses. One of the more controversial of these is the indefinite detention of suspected enemy combatants, and the associated question as to whether the United States can and does employ torture.

Many prominent voices, such as Professor Alan Dershowitz, have advocated a judicial exception allowing torture as an interrogation tool in special instances, but the United States has struggled to find an appropriate balance between civil liberties and security concerns. To succeed in the War on Terror, the U.S. cannot allow …

Building Democracies With Southern Command’S Legal Engagement Strategy, Jeffrey F. Addicott, Guy B. Roberts

Faculty Articles

Fostering democracies and encouraging military establishments, which are subject to the rule of law, is vital to United States national security interests. In this regard, the American warfighting unified commands mirror the overall U.S. national security policy of peacetime engagement, not only by maintaining close contacts with friendly governments for the purpose of imparting democratic ideals and principles, but by focusing this commitment to support new democracies through detailed engagement plans.

U.S. Southern Command’s engagement plan for Latin America creates a “community of democratic, stable, and prosperous” nations. This plan also provides a blueprint for democracy-building in the context of …

The Book In Retrospect, David Rudenstine

Faculty Articles

No abstract provided.

The Status Of The Diplomatic Bag: A Proposed United States Position, Jeffrey F. Addicott

Faculty Articles

The protections afforded diplomats, diplomatic missions, and diplomatic bags have been misused to sponsor or commit various criminal acts. This strikes at the heart of traditional concepts of international diplomatic relations. Use of the diplomatic bag to import and export prohibited or illegal items is particularly concerning, and the most disconcerting abuses are those that use the diplomatic bag to facilitate acts of terrorism.

All malum in se acts that abuse this diplomatic shield are objectionable. As such, it is necessary to examine the current legal status of the diplomatic bag and recent international efforts to re-examine that status. Conflicts …