Military, War, and Peace Commons^™

"When A Nation Is At War": A Context-Dependent Theory Of Free Speech For The Regulation Of Weapon Recipes, Liezl Irene Pangilinan

Cardozo Arts & Entertainment Law Journal

No abstract provided.

An Essay On The Spirit Of Liberty In The Fog Of War, Patrick L. Baude

Articles by Maurer Faculty

This article previews the Supreme Court's decision in the Guantánamo prisoners' cases, arguing they should be dismissed for failure of jurisdiction. The worst possible outcome for civil liberties in wartime would be a decision to adjudicate the rights of the prisoners under an anemic view of individual rights and judicial jurisdiction. It is evident that the Court will not apply a robust conception of due process to these cases, in light of the inevitable pressures of national security in wartime. But faint-hearted judicial review, the likely result, will foster the political illusion that business as normal for our constitutional system …

War Everywhere: Rights, National Security Law, And The Law Of Armed Conflict In The Age Of Terror, Rosa Ehrenreich Brooks

Georgetown Law Faculty Publications and Other Works

Both international and domestic law take as a basic premise the notion that it is possible, important, and usually fairly straightforward to distinguish between war and peace, emergencies and normality, the foreign and the domestic, the external and the internal. From an international law perspective, the law of armed conflict is triggered only when a armed conflict actually exists; the rest of the time, other bodies of law are applicable. Domestically, U.S. courts have developed a constitutional and statutory jurisprudence that distinguishes between national security issues and domestic questions, with the courts subjecting government actions to far less scrutiny when …

War And American Constitutional Order, Mark E. Brandon

Vanderbilt Law Review

In their introduction to a fine new edition of Alexis de Tocqueville's Democracy in America, Harvey C. Mansfield and Delba Winthrop claim that "[i]f the twentieth century has been an American century, it is because the work of America... has been to keep democracy strong where it is alive and to promote it where it is weak or nonexistent." By "democracy" they doubtless intend something akin to "constitutional democracy," "liberal democracy," or "republican government." I take each of these to be a rough proxy for a constitutionalist system that includes (1) institutions authorized by and accountable to the people (both …

Trial Of The Accused Taliban And Al Qaeda Operatives Captured In Afghanistan And Detained On A U.S. Military Base In Cuba, Jaime Jackson

ExpressO

A timely piece proposing solutions for issues certain to be raised in the upcoming trials of the accused Taliban and Al Qaeda operatives captured in Afghanistan and detained on a U.S. military base in Cuba. In the article, I begin by examining the history and jurisdiction of Article I and Article III courts and then address the history and structure of the Al Qaeda and Taliban regimes. After considering the Constitution, federal statutes, politics, and geographical limitations, I conclude that Al Qaeda detainees should be tried in Article III courts under terrorism statutes and Taliban detainees, as military combatants, should …

Lbj's Ghost: A Contextual Approach To Targeting Decisions And The Commander In Chief, James E. Baker

Georgetown Law Faculty Publications and Other Works

The moral imperative and relevance of the Law of Armed Conflict (“LOAC”) is more apparent today than before September 11, 2001. Law distinguishes democratic societies from the terrorists who attack them; nowhere is this more apparent than in the methods and means of warfare. Indeed, part of our revulsion and contempt for terrorism lies in the terrorists' indiscriminate, disproportionate, and unnecessary violence against civilians. In contrast, the enduring strength of the LOAC is its reliance on the principles of proportionality, necessity, and discrimination, which protect civilians and minimize combatant suffering. For these reasons, we should not begrudge the LOAC's limitations …

The Military -Judicial Nexus In Response To Terrorism: Kkk And Alqaeda, Wayne Mccormack

ExpressO

In considering the validity of "enemy combatant" status and military detention for alleged terrorists, several additional propositions emerge. Indefinite military detention of a US citizen arrested on US soil for a domestic crime is far beyond the pale of basic constitutional underpinnings. With respect to noncitizens and citizens captured overseas, military power is arguable but far from solid. In that event, why not take the route that does the least disruption to our system? Second, because the law abhors incoherence, we should be able to make coherent distinctions among alleged terrorists for the purpose of deciding who is tried in …

Targeted Killing And Assassination: The U.S. Legal Framework, William C. Banks, Peter Raven-Hansen

University of Richmond Law Review

No abstract provided.

It's Not Really "Assassination": Legal And Moral Implications Of Intentionally Targeting Terrorists And Aggressor-State Regime Elites, Robert F. Turner

University of Richmond Law Review

No abstract provided.

Assassination, The War On Terrorism, And The Constitution, Rodney A. Smolla

University of Richmond Law Review

No abstract provided.

Proposal For A New Executive Order On Assassination, Jeffrey F. Addicott

University of Richmond Law Review

No abstract provided.

Quirin Revisited, Carl W. Tobias

Law Faculty Publications

Six decades ago, the U.S. Supreme Court decided Ex parte Quirin, in which the Justices determined that President Franklin Delano Roosevelt possessed the requisite constitutional authority to institute and use a military commission.

On November 13, 2001, President George W. Bush promulgated an Executive Order (Bush Order) that authorized the establishment and application of military commissions as well as purported to eliminate whatever jurisdiction federal courts might have by statute and to deny federal court access to individuals prosecuted or detained for terrorism. The Bush administration substantially premised that the Order and jurisdiction-stripping proviso on Ex parte Quirin. It has …

Constitutional Law: The Province And Duty Of The Judicial Department: Why The Court Cannot Continue To Use Justiciability To Avoid Dealing With The Tension Between Congress And The President Regarding The War Powers, Cassandra L. Wilkinson

Oklahoma Law Review

No abstract provided.

Detentions, Military Commissions, Terrorism And Domestic Case Precedent, Carl W. Tobias

Law Faculty Publications

Laura Dickinson's recent article in this journal substantially improves appreciation of how the United States has detained suspects and instituted military commissions as well as of the roles played by the controversial procedure and tribunals when fighting terrorism. She meticulously traces how detentions and the commissions evolved, trenchantly criticizes them, and persuasively shows international tribunals' comparative advantage. Dickinson accords relevant domestic case precedent a somewhat laconic analysis, however. For example, she briefly mentions separation-of-powers concerns and Supreme Court opinions that detentions and military commissions implicate while rather tersely assessing Ex parte Quirin, the Second World War decision on which …

The War On Terrorism And The Constitution, Michael I. Meyerson

All Faculty Scholarship

Discussion of civil liberties during wartime often omit the fact that there can be no meaningful liberty at all if our homes and offices are bombed or our loved ones are killed or injured by acts of terror. The Government must be given the tools necessary to accomplish its vital mission. The first priority must be to win the war against terrorism. There are, however, other priorities. The United States, in its just battle for freedom, must ensure that freedom is preserved during that battle as well. Moreover, care must be taken so that an exaggerated cry of “emergency” is …

Rehnquist's Vietnam: Constitutional Separatism And The Stealth Advance Of Martial Law, Diane H. Mazur

UF Law Faculty Publications

This Article argues that judicial deference to the military, at least as the principle is understood in contemporary decisions of the Court, is surprisingly recent and not at all constitutionally established. In fact, this deference departs from constitutional text and from a line of Supreme Court precedent concerning civilian-military relations extending back before the Civil War. Broad judicial deference to military discretion is only a creation of the post-Vietnam, all-volunteer military and, more specifically, only a creation of one single Justice of the Supreme Court, William H. Rehnquist.

In Greer v. Spock, First Amendment values were displaced narrowly in the …

The Constitutional Duty Of A National Security Lawyer In A Time Of Terror, James E. Baker

Georgetown Law Faculty Publications and Other Works

National security lawyers are probably not in the forefront of the public’s mind when one refers to government lawyers, but they serve a vital mission within the public sector. This article explores the duties and responsibilities inherent in that mission, and discusses the continuing role of the national security lawyer after the terrorist attacks of September 11th, 2001.

The Legality And Constitutionality Of The President's Authority To Initiate An Invasion Of Iraq, Mark R. Shulman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Enemy Aliens, David Cole

Georgetown Law Faculty Publications and Other Works

In the wake of September 11, many have argued that the new sense of vulnerability that we all feel calls for a recalibration of the balance between liberty and security. In fact, however, much of what our government has done in the war on terrorism has not asked American citizens to make the difficult choice of deciding which of their liberties they are willing to sacrifice for increased security. Instead, the government has taken the politically easier route of selectively sacrificing the rights of aliens, and especially Arab and Muslim aliens, in the name of furthering national security. This is …

At War With Civil Rights And Civil Liberties, Thomas E. Baker

Faculty Publications

This essay looks at the Supreme Court and acquiescence to measures by the Executive Branch that limit or suspend civil liberties during times of war or threats to national security.

Ordered Liberty And The Homeland Security Mission, James E. Baker

Georgetown Law Faculty Publications and Other Works

This paper will start with a brief discussion of the terrorism threat because the threat remains predicate for any serious discussion of where we draw our legal lines. I will then suggest a legal model for looking at questions of homeland security called ordered liberty. The model is simple. First, given the nature of the threat, the executive must have broad and flexible authority to detect and respond to terrorism-–to provide for our physical security. Second, the sine qua non for such authority is meaningful oversight. Oversight means the considered application of constitutional structure, executive process, legal substance, and relevant …

What To Do With Bin Laden And Al Qaeda Terrorists?: A Qualified Defense Of Military Commissions And United States Policy On Detainees At Guantanamo Bay Naval Base, Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

This article, published in a special post 9-11 issue of the Harvard Journal of Law & Public Policy, offers a defense of the view that terrorists such as Osama Bin Laden should be tried, if captured, outside of regular US civilian courts and in some form of military commission.

The article argues that terrorists should be seen as criminals as well as enemies of the United States. Criminals who are simply deviants from the domestic social order are properly dealt with within the constitutionally constituted civilian court structure. Enemies who are not also criminals - legal combatants - are properly …

A Qualified Defense Of Military Commissions And United States Policy On Detainees At Guantanamo Bay Naval Base, Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

This article, published in a special post 9-11 issue of the Harvard Journal of Law & Public Policy, offers a defense of the view that terrorists such as Osama Bin Laden should be tried, if captured, outside of regular US civilian courts and in some form of military commission. The article argues that terrorists should be seen as criminals as well as enemies of the United States. Criminals who are simply deviants from the domestic social order are properly dealt with within the constitutionally constituted civilian court structure. Enemies who are not also criminals - legal combatants - are properly …

When Lawyers Advise Presidents In Wartime: Kosovo And The Law Of Armed Conflict, James E. Baker

Georgetown Law Faculty Publications and Other Works

The events of September 11 changed how we perceive national security as a society, a government, and as individuals. This is as true of national security specialists, who have been aware that America has been at war with terrorism sine at least the 1990s, as it is for those whose sense of geographic security was shattered in New York and Washington. There is talk of “new war” and “new rules,” and concern that we not apply twentieth-century lessons to a twenty-first-century war.

Over time, September 11 and its aftermath will test our interpretation and application of domestic law. It may …

The World After Terrorism, 35 J. Marshall L. Rev. 91 (2001), Petr Pithart

UIC Law Review

No abstract provided.

Antiterrorism Military Commissions: Courting Illegality, Jordan J. Paust

Michigan Journal of International Law

On November 13, 2001, President Bush issued a sweeping and highly controversial Military Order for the purpose of creating military commissions with exclusive jurisdiction to try certain designated foreign nationals "for violations of the laws of war and other applicable laws" relevant to any prior or future "acts of international terrorism." The Order reaches far beyond the congressional authorization given the President "to use all necessary and appropriate force," including "use of the United States Armed Forces," against those involved in the September 11th attack "in order to prevent any future acts of international terrorism against the United States by …

What Is It Good For? War Power, Judicial Review, And Constitutional Deliberation, J. Richard Broughton

Oklahoma Law Review

No abstract provided.

The Second Amendment: Structure, History, And Constitutional Change, David Yassky

Michigan Law Review

A fierce debate about the Second Amendment has been percolating in academia for two decades, and has now bubbled through to the courts. The question at the heart of this debate is whether the Amendment restricts the government's ability to regulate the private possession of firearms. Since at least 1939 - when the Supreme Court decided United States v. Miller, its only decision squarely addressing the scope of the right to "keep and bear Arms" - the answer to that question has been an unqualified "no." Courts have brushed aside Second Amendment challenges to gun control legislation, reading the Amendment …

The Origins And Application Of The Military Deference Doctrine, John F. O'Connor

Georgia Law Review

Although the military deference doctrine is often thought to have originated in Supreme Court decisions in the nineteenth century, the doctrine actually is of fairly recent vintage, being traceable to four decisions issued by the Burger Court between 1974 and 1976. The military deference doctrine is (and should be) limited to constitutional issues where courts weigh the extent of the government's interest in determining the constitutionality of the practice at issue. In addition,although the doctrine is oft- criticized by legal scholars,it remains a viable and robust part of the Supreme Court's constitutional jurisprudence

Framers’ Intent And Military Power: Has Supreme Court Deference To The Military Gone Too Far?, Kalyani Robbins

Faculty Publications

The first ten amendments to the United States Constitution, ratified in 1791 and known as the Bill of Rights, create the core of what people today consider their most basic freedoms. Without these rights, and consistent judicial adherence to them, most Americans would not feel secure. There are two major sources of danger to these basic rights: internal and external. Internally, we must protect ourselves from our own infringement of these rights through the firm restrictions that the Constitution places on the government in its treatment of the people. Externally, we must protect our system of maintaining these freedoms from …