Military, War, and Peace Commons^™

Waging War Against Terror: An Essay For Sandy Levinson, Philip Bobbitt

Georgia Law Review

Wars are acts of State, and therefore there has never been a "war on terror." Of course states have fought terrorism, in many guises, for centuries. But a war on terror had to await the development of states-including virtual states like al Qaeda's global ummah 2-whose constitutional order was not confined to a particular territory or national group and for whom terror could therefore be a permanent state of international affairs, either sought in order to prevent persons within a state's control from resisting oppression by accessing global, empowering resources and networks, or suffered because other states wished to press …

The Emancipation Proclamation And The Commander In Chief Power, Michael S. Paulsen

Georgia Law Review

Levinson, a good Socratic teacher, poses the question what is the relationship of emergency or necessity to constitutional power, constitutional rights, and constitutional interpretation generally, and surrounds it with a characteristically fascinating discussion. But while his leanings are clear, he does not clearly answer the question his discussion poses. One can certainly infer that Levinson dislikes Carl Schmitt's legal theories of emergency, which he sees as justifying Hitler's rise to power. And it certainly comes through quite clearly that Levinson feels the same way about the U.S. Department of Justice's legal analysis concerning detention and interrogation of war prisoners (which …

Small Emergencies, Kim L. Scheppele

Georgia Law Review

In this Comment, I argue that the "normal" American constitutional order can be seen as thoroughly shot through with emergency law and that this constant sense of emergency has fundamentally shaped the possibilities of American constitutionalism. America is now-and has been since the First World War-virtually always in a state of emergency, one way or another. Sometimes these states of emergency have been local, other times they have been federal, and still other times they have been international. Sometimes these states of emergency have been political; other times they have been economic or social. Sometimes these states of emergency have …

Time To Look Abroad? The Legal Regulation Of Emergency Powers, William E. Scheuerman

Georgia Law Review

The starting point for Professor Levinson's thought-provoking ruminations on emergency power and constitutionalism is his deep skepticism about the Bush Administration's legal response to 9/11.1 In the context of the "war on terror," Professor Levinson accurately recounts, the Administration has claimed the right to override both longstanding domestic and international legal commitments.2 Even strict prohibitions on torture, it seems, are not exempt from the President's constitutionally based prerogative as "Commander in Chief to keep the nation out of harm's way, and only he apparently possesses the rightful authority to determine the fate of accused terrorists. Although many constitutional lawyers will …

Abu Ghraib, Diane Marie Amann

Scholarly Works

This article posits a theoretical framework within which to analyze various aspects of post-September 11 detention policy - including the widespread prisoner abuse that has been documented in the leaks and official releases that began with publication of photos made at Iraq's Abu Ghraib prison. Examined are the actions of civilian executive officials charged with setting policy, of judicial officers who evaluated it, and military personnel who implemented it. Abuse has been attributed to failures of training or planning. The article concentrates on a different failure, the failure of law to keep lawlessness in check. On September 11, law's map …

Foreword: Rethinking Reconstruction After Iraq, Diane Marie Amann

Scholarly Works

Foreword to a symposium held on March 12, 2004 by the UC Davis Journal of International Law & Policy. Entitled “Rethinking Reconstruction After Iraq,” the symposium was designated a regional meeting of the American Society of International Law and the American Branch of the International Law Association, and further was sponsored by the American National Section of the International Association of Penal Law and the International Human Rights Committee of the Bar Association of San Francisco.

"Doublethink"Ing Privacy Under The Multi-State Antiterrorism Information Exchange, Thomas V. Burch

Scholarly Works

This Article examines the development of the Matrix program and analyzes its effect on what Justices Warren and Brandeis termed the individual's "right to be let alone." To understand the Matrix's effect on individual privacy, one must scrutinize the program in the context of United States history.From the Alien and Sedition Acts to the Red Squads of the 1960s and 1970.

Part II of this Article examines how civil liberties often suffer unnecessarily in times of national crisis. Part III then discusses how this truism applies in the current "war on terror" and details the development and operation of the …

Non-State Actors In The Nuclear Black Market: Proposing An International Legal Framework For Preventing Nuclear Expertise Proliferation & Nuclear Smuggling By Non-State Actors, Thomas V. Burch

Scholarly Works

While there are a number of disincentives that prevent states from participating in the nuclear black market, most of these deterrents do not apply to non-state actors. This article focuses on the difficulties this situation presents in a time of global terrorism. The author points out that terrorists already have the money, means and motive to build or purchase nuclear devises. In analyzing this issue the author proposes two options. First, member parties could amend one of all of several existing treaties of the subject. Second, the international community can draft a new treaty or convention on nuclear smuggling and …

Legal Regulation Of The Effects Of Military Activity On The Environment, Daniel M. Bodansky

Scholarly Works

While in times of peace a growing number of multilateral environmental agreements serves to protect the environment, existing international law affords only very limited protection against the threats of war to the environment. This is the finding of a study by Prof. Daniel Bodansky, University of Georgia, USA on behalf of the German Federal Environmental Agency (Umweltbundesamt) which reviews the adequacy of the law of war and of the general principles of international law to protect the environment. At present international law leaves nation states with a wide degree of discretion to justify environmental harm caused by acts of war.

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

International Jurisdiction In Products Liability Cases (Analysis Of Asahi And Post-Asahi Cases), Tsutomu Kuribayashi

LLM Theses and Essays

With the increase of foreign trade, there has also been an increase in the number of foreign manufacturers and distributors involved in product liability litigation in the United States. In many cases, the products from these foreign manufacturers and distributors reach the forum states through the stream of commerce, and are distributed to the customers by regional distributors, wholesalers, and retailers. Therefore, in many product liability cases where defective products from these foreign manufacturers and distributors cause injuries to people in the United States, those foreign companies do not have a direct relationship with the forum states. In these cases, …

The Role Of The United Nations In The Maintenance Of Peace Before And After The Year Two Thousand, Gabriel M. Wilner

Scholarly Works

This short description of some of the important ideas set forth in the various contributions to the Colloquium is meant to give the reader an idea of the broad spectrum of issues and problems with which the international community is confronted both in continuing to use the present structure and competence of the Security Council and in making reforms. While the General Assembly and other organs of the United Nations and of regional and national institutions are mentioned as useful in the struggle to maintain world peace, it is clear that the Security Council will continue to dominate the work …

The New Dimensions Of United Nations Peacemaking, Louis B. Sohn

Scholarly Works

Since its beginning, mankind has alternated between periods of peace and war. The Twentieth Century was the first one in which attempts were made to outlaw war and to establish institutions which would protect the peoples of the world against war. After the carnage of the Second World War, the United Nations was established "to save succeeding generations from the scourge of war," and the Security Council was given the "primary responsibility for the maintenance of international peace and security." The founders of the United Nations tried to ensure that the Council would have necessary means for discharging this responsibility, …

Gradations Of Intervention In Internal Conflicts, Louis B. Sohn

Scholarly Works

I promised to suggest a definition. It is a very modest one, simply trying to apply the language of article 51 of the Charter about self-defense to the problem of military intervention. It might be desirable to have at least a rule which would say: "No military invention by one state in the internal armed conflicts in another state is permissible except in an extreme emergency requiring instant response and subject to imimediate termination of such emergency action on the request of the United Nations or an appropriate regional organization."

Introduction To Panel Iii: Regional And Other International Organizations Responses To Internal Conflict, Louis B. Sohn

Scholarly Works

The United Nations has been trying to do three different things. First, the United Nations had to develop the basic principles of intervention. Most of them were borrowed from the Charter of the Organization of American States, especially those on intervention, but they went much further concerning the limitations on help to guerrillas and the problems of interference by various means. The United Nations Declaration on Friendly Relations, the Declaration on Inadmissibility of Intervention, and several other documents have been broadening or clarifying the law on the subject over the last 20 years. Second, as noted previously, the United Nations …

A Message Of Hope, Dean Rusk

Scholarly Works

So I would hope, based upon the extraordinarily interesting discussion that we have had here during this Colloquium, that we try to follow it up a bit and not be too discouraged about the modesty of certain things that might be done, but see if we cannot find some way to encapsulate, surround, isolate these internal violence situations so that they do not contribute to those great struggles which could end us all.

Ironies Of Intervention, Milner S. Ball

Scholarly Works

I have detected in our deliberations this afternoon two ironies. The first is this: the dissentient receive more protection as enemies than as citizens. As we have heard today, there is greater opportunity for the assimilation of humanitarian law if the sides engaged in internal conflict are regarded as combatants and not as fellow citizens. With the application of the law of armed conflict comes the prospect that the opponents may observe some degree of mutual respect. Such dignity as the law accords thus becomes a function of formalized hostility rather than of civil affection, of open distrust rather than …

Introduction To Panel I, Gabriel M. Wilner

Scholarly Works

The work of this panel is to sort out the theories and arguments on the obligations of individual states, as distinguished from the international or regional community of states acting under the rules of an international organization, in dealing with internal conflicts in other states. Are states assisted in determining their obligations by existing standards of international law? The panel will wish to address itself to the central question of the content of international law standards on intervention. In doing so it may also wish to offer some definition of "internal conflict" and discuss the ramifications of the passage from …

The 25th U.N. General Assembly And The Use Of Force, Dean Rusk

Scholarly Works

The law of the United Nations Charter is not now quite the same as it was before the Declaration on Friendly Relations was adopted. Although not a formal enactment, it gives more flesh and bone to key articles, such as article 2(4).

Federal Courts Intervention In Military Courts--Interrelationship Of Defenses And Comity, Wayne Mccormack

Scholarly Works

In the case of Parisi v. Davidson the Supreme Court granted habeas corpus relief to a serviceman who was being court-martialed for disobedience to orders issued after he had been denied administrative discharge on a conscientious objector claim. Professor McCormack analyzes Parisi and uses it as a vehicle to examine the Court's present notions of comity and abstention.