Military, War, and Peace Commons^™

Regulating Armed Private Militia Gatherings: A Constitutional State-Level Proposal To Promote Public Safety In A Post-Heller World, Sean Tenaglia

William & Mary Law Review

“Yesterday, in my view, was one of the darkest days in the history of our nation.” President Joseph R. Biden spoke these words following the January 6, 2021 riots at the U.S. Capitol Building that left five people, including a police officer, dead. The mob that stormed the Capitol sought to prevent Congress from certifying then-President-elect Biden’s Electoral College victory. In the weeks following the riot, investigators began arresting rioters associated with extremist right-wing militia groups, such as the Oath Keepers and Three Percenters. While January 6, 2021, can accurately be labeled a dark day in American history, the events …

The Article Iii Publication Power And The Foreign Intelligence Surveillance Court, John Langford

Cardozo Law Review

The Framers vested “the judicial Power of the United States” in independent courts so that they may protect individual liberty and serve as a check on the legislative and executive branches. The judicial power, however, is narrow and not self-executing. As Chief Justice Marshall put it, it is merely the power “to say what the law is.” Federal courts cannot raise armies or pay money to enforce their decrees. Having neither force nor will, courts must instead rely on cultivating public support to secure the authoritative legitimacy necessary to effectuate their judgments.

But what happens when the executive branch asserts …

Invoke Your Right To Remain Silent After You Confess: Self-Reporting Regulations And Potential Conflicts With International Law Prohibiting Compulsory Self-Incrimination, Patrick Testa

Georgia Journal of International & Comparative Law

No abstract provided.

Going Rogue: The Supreme Court's Newfound Hostility To Policy-Based Bivens Claims, Joanna C. Schwartz, Alexander A. Reinert, James E. Pfander

Articles

In Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme Court held that a proposed Bivens remedy was subject to an exacting special factors analysis when the claim arises in a “new context.” In Ziglar itself, the Court found the context of the plaintiffs’ claims to be “new” because, in the Court’s view, they challenged “large-scale policy decisions concerning the conditions of confinement imposed on hundreds of prisoners.” Bivens claims for damages caused by unconstitutional policies, the Court suggested, were inappropriate.

This Essay critically examines the Ziglar Court’s newfound hostility to policy-based Bivens claims. We show that an …

All For Nothing?: Executive Authority And Congressional Evasion On Arms Sales, Margaret M. Murphy

Catholic University Law Review

On August 17, 2018, CNN reported that Lockheed Martin manufactured a bomb that killed dozens of Yemeni schoolchildren in Northern Yemen. Saudi Arabia purchased the bomb in an arms deal authorized under the Arms Export Control Act, the statute in which Congress delegates to the President authority to control the import and export of arms. Under the Act, the President must comply with reporting and waiting periods allowing time for Congress to oppose a sale by enacting a joint resolution. However, the Act allows the President to sell arms in an emergency without notice or waiting periods. President Trump invoked …

The Militia: A Definition And Litmus Test, Marcus Armstrong

St. Mary's Law Journal

The United States Supreme Court, in its decision in Perpich v. Department of Defense, ruled that members of the National Guard are “troops” as that word is used in the Constitution. In doing so, the Court negated a long-standing, but obsolete, definition of the militia. However, this move away from an obsolete definition of the militia posed considerable difficulties that the Court was unable to rectify in its Perpich decision. In this Article, the author hopes to help rectify these difficulties by proposing four necessary characteristics that define the militia: first, the militia is a military force; second, the …

Racial Equality And Inequality In America And Lessons From Other Countries, William Y. Chin

Cardozo Journal of Equal Rights & Social Justice

America, a mighty global hegemon supreme in military matters, regards itself as second to none, and where it leads, it expects other countries to follow. But on matters of race, America could follow the examples of countries that have taken the lead in experimenting with racial equality efforts and initiatives. From Brazil's "redemption through reading" prison program to the High Court of Australia's return of land to indigenous inhabitants, much could be learned from the lessons of other countries. That there is still much to learn about racial equality is evident from the police killing of George Floyd, a Black …

Article I: Reforming The War Powers Resolution For The 21st Century, Rebecca Ingber

Testimony

Professor Rebecca Ingber testified at a U.S. House Committee on Rules hearing on March 23, 2021, titled "Article I: Reforming the War Powers Resolution for the 21st Century."

Legally Sliding Into War, Rebecca Ingber

Online Publications

Here we are again. Another presidential administration, another airstrike against another organized armed group against whom Congress has never authorized force, justified by self-defense, officially said to be necessary in light of some unstated, unspecified future threat.

Military Service And Offending Behaviors Of Emerging Adults: A Conceptual Review, Christopher Salvatore, Travis A. Taniguchi

Department of Counseling Scholarship and Creative Works

Focusing on the United States, this paper examines the impact of military service for the cohort of individuals that have experienced the social factors that characterize emerging adulthood as a unique stage in the life course. We argue that military service, as a turning point, may act differently in contemporary times compared to findings from past research. This difference is driven by changes in military service, the draft versus volunteer military service, and the prevalence of emerging adulthood. As a background, we describe emerging adulthood, examine how emerging adulthood relates to crime and deviance, explore the impact of military life …

Brain-Computer-Interfacing & Respondeat Superior: Algorithmic Decisions, Manipulation, And Accountability In Armed Conflict, Salahudin Ali

Catholic University Journal of Law and Technology

This article examines the impact that brain-computer-interfacing platforms will have on the international law of armed conflict’s respondeat superior legal regime. Major Ali argues that the connection between the human brain and this nascent technology’s underlying technology of artificial intelligence and machine learning will serve as a disruptor to the traditional mental prerequisites required to impart culpability and liability on commanders for actions of their troops. Anticipating that BCI will become increasingly ubiquitous, Major Ali’s article offers frameworks for solution to BCI’s disruptive potential to the internal law of armed conflict.

The Effects Of National Security On Supreme Court Case Decisions Involving Civil Liberties, Callie Gerzanics

Williams Honors College, Honors Research Projects

This research project will analyze the effects that national security laws and tensions have on civil liberties and Supreme Court case decisions. National security has been a primary objective for the United States of America for as long as wars have been fought and enemies have been made. National security continues to be a concern for the U.S. government, especially with the prominence of technology that has made the U.S. more vulnerable to breaches in security, such as cybernetic attacks. The motivations behind this project stem from a concern of how national security can influence Supreme Court decisions, police arrests, …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

The Reprieve Power: May The Uniform Code Of Military Justice Limit Executive Clemency?, Nino C. Monea

West Virginia Law Review

Article 57 of the Uniform Code of Military Justice states the President "may commute, remit, or suspend the sentence, or any part thereof, as the President sees fit. That part of the sentence providing for death may not be suspended." This seemingly contradicts Article 2 of the United States Constitution, which states that the President "shall have the power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." This Article looks at whether the power to "reprieve" offenses includes the power to suspend sentences, including military sentences, and concludes that it does. The …

Will Cyber Autonomy Undercut Democratic Accountability?, Ashley Deeks

International Law Studies

In recent years, legislative bodies such as the U.S. Congress and the U.K. Parliament have struggled to maintain a role for themselves in government decisions to conduct military operations against foreign adversaries. Some of these challenges arise from constitutional structures, but they are also due to the changing nature of conflict: a shift away from large-scale kinetic operations and toward smaller-scale operations—including cyber operations—that are less visible and that do not require robust legislative support. These modern operations leave legislatures to engage in ex post and sometimes ineffective efforts to hold their executive branches accountable for international uses of force …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Preparing The Public For A Contested Election, Deborah Pearlstein

Online Publications

While perhaps once thought too far-fetched to discuss out loud in serious company, concerns that Donald Trump will refuse to leave office even if he loses the November election have gained increasing mainstream attention in recent months. Indeed, it would be foolish to assume that such a possibility is out of the question. The president has spent the past four years making clear his desire to remain more than two terms in office, and has worked especially diligently of late to lay the rhetorical groundwork for declaring the results of the federal election – particularly one reliant on absentee voting …

Kosovo's Controversial 100 Percent Tariff: An Analysis Of Its Imposition And The Issues Bleeding Into The Conflict Between Kosovo And Serbia, Ernira Mehmetaj

Brooklyn Journal of International Law

On November 6, 2018, Kosovo imposed a 10 percent tariff on products imported from Serbia and Bosnia and Herzegovina. Later that month, on November 28, 2018, after Kosovo was denied membership in the International Criminal Police Organization, Kosovo increased the custom tariffs on Serbian and Bosnian goods from 10 to 100 percent. These actions resulted in a standstill of the European Union–mandated Belgrade-Pristina dialogue—a dialogue seeking to normalize the relations between the two states. Having the tumultuous history shared by Kosovo and Serbia as a backdrop, this Note analyzes the international agreements Kosovo is party to, specifically the Central European …

The Nineteenth Amendment And The U.S. "Women's Emancipation Policy" In Post-World War Ii Occupied Japan: Going Beyond Suffrage, Cornelia Weiss

Akron Law Review

This paper explores the influence of the Nineteenth Amendment on U.S. military occupation policy in Post-World War II Japan. A mere 25 years after the ratification of the Nineteenth Amendment, actions taken during the military occupation did not stop at suffrage for Japanese women. Actions included a constitution that provided for women’s “equality” (what, even 100 years after the ratification of the Nineteenth Amendment, is still absent in the U.S. constitution). In addition to addressing women’s suffrage and constitutional equality, this paper examines the successes and failures of the Occupation to eradicate the legal enslavement of women, to eliminate the …

Federalism And The Military Power Of The United States, Robert Leider

Vanderbilt Law Review

This Article examines the original meaning of the constitutional provisions governing the raising and organization of military forces. It argues that the Framers carefully divided the military between the federal and state governments. This division provided structural checks against the misuse of military power and made it more difficult to use offensive military force. These structural checks have been compromised by the creation of the U.S. Army Reserve, the dual enlistment of National Guard officers and soldiers, and the acceptance of conscription into the national army, all of which have enhanced federal military power beyond its original constitutional limits.

This …

Does The Woman Suffrage Amendment Protect The Voting Rights Of Men?, Steve Kolbert

Seattle University Law Review

This Article—part of the Seattle University Law Review’s symposium on the centennial of the ratification of the Woman Suffrage Amendment—examines that open possibility. Concluding that the Nineteenth Amendment does protect men’s voting rights, this Article explores why and how that protection empowers Congress to address felon disenfranchisement and military voting. This Article also examines the advantages of using Nineteenth Amendment enforcement legislation compared to legislation enacted under other constitutional provisions.

Part I discusses the unique barriers to voting faced by voters with criminal convictions (Section I.A) and voters in the armed forces (Section I.B). This Part also explains how existing …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Constitutional War Powers In World War I: Charles Evans Hughes And The Power To Wage War Successfully, Matthew C. Waxman

Faculty Scholarship

On September 5, 1917, at the height of American participation in the Great War, Charles Evans Hughes famously argued that “the power to wage war is the power to wage war successfully.” This moment and those words were a collision between the onset of “total war,” Lochner-era jurisprudence, and cautious Progressive-era administrative development. This article tells the story of Hughes’s statement – including what he meant at the time and how he wrestled with some difficult questions that flowed from it. The article then concludes with some reasons why the story remains important today.

Cyberattacks And The Constitution, Matthew C. Waxman

Faculty Scholarship

Contrary to popular view, cyberattacks alone are rarely exercises of constitutional war powers – and they might never be. They are often instead best understood as exercises of other powers pertaining to nonwar military, foreign affairs, intelligence, and foreign commerce, for example. Although this more fine-grained, fact-specific conception of cyberattacks leaves room for broad executive leeway in some contexts, it also contains a strong constitutional basis for legislative regulation of cyber operations.

Strengthening The U.S.-Japan Alliance: Pathways For Bridging Law And Policy, Columbia Law School, 2020, Nobuhisa Ishizuka, Masahiro Kurosaki, Matthew C. Waxman

Faculty Scholarship

During the three years leading up to this year ’s 60th anniversary of the signing of the 1960 U.S.-Japan Security Treaty, a series of workshops were held under the joint sponsorship of Columbia Law School’s Center for Japanese Legal Studies and the National Defense Academy of Japan’s Center for Global Security. Bringing together experts in international law and political science primarily from the United States and Japan, the workshops examined how differing approaches to use of force and understandings of individual and collective self-defense in the two countries might adversely affect their alliance.

The workshop participants explored the underlying causes …

War Powers: Congress, The President, And The Courts – A Model Casebook Section, Stephen M. Griffin, Matthew C. Waxman

Faculty Scholarship

This model casebook section is concerned with the constitutional law of war powers as developed by the executive and legislative branches, with a limited look at relevant statutes and federal court cases. It is intended for use in Constitutional Law I classes that cover separation of powers. It could also be used for courses in National Security Law or Foreign Relations Law, or for graduate courses in U.S. foreign policy. This is designed to be the reading for one to two classes, and it can supplement or replace standard casebook sections on war powers that are shorter and offer less …

Citizen Soldiers And The Foundation Fusion Of Masculinity, Citizenship, And Military Service, Jamie Abrams, Nickole Durbin

Scholarly Articles in Law Reviews & Journals

Sarah Livingston Jay famously toasted revelers in 1783: "May all our citizens be soldiers, and all our soldiers citizens." This toast conveyed "a foundational fusion" within our republican government tradition-coupling military service, citizenship, and masculinities.' The Akron Law School's conference on the 100th anniversary of the passage of the Nineteenth Amendment offered the chance to fight the eulogization of the Nineteenth Amendment and explore its modern relevance. This paper concludes that the Nineteenth Amendment cannot be understood without connecting it to broader conceptions of citizenship, masculinities, and military service, thus revealing its ongoing relevance to military inclusion and integration.

In …

In Memory Of Professor James E. Bond, Janet Ainsworth

Seattle University Law Review

Janet Ainsworth, Professor of Law at Seattle University School of Law: In Memory of Professor James E. Bond.

Nuclear Weapons, The War Powers, And The Constitution: Mutually Assured Destruction?, John M. Dipippa

South Carolina Law Review

No abstract provided.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.