Military, War, and Peace Commons^™

Welcome To The Junta: The Erosion Of Civilian Control Of The U.S. Military, Charles J. Dunlap Jr.

Faculty Scholarship

Colonel Dunlap argues that civilian control of the United States military is eroding as a result of seemingly disparate phenomena. Colonel Dunlap first examines the American tradition of antimilitarism, which he believes no longer effectively restrains the modern armed forces. He then analyzes the effects of the military's elevated public support, the evolving nature of the leadership elite, and the increasing vulnerability of constitutional safeguards to military influence. In an effort to assess the current predicament, Colonel Dunlap introduces the new paradigm of postmodern militarism that challenges traditional notions of civilian control. Noting the potential long-term implications of excessive military …

The Command And Control Of United Nations Forces In The Era Of "Peace Enforcement", James W. Houck

Faculty Scholarship

This Article explores how concerns regarding the United Nations' authority to make political, strategic, and operational decisions that comprise the right to command and control UN forces might be reconciled within the framework of the United Nations Charter to create a contemporary and more enduring regime for the command and control of United Nations forces. As Part II demonstrates, command and control issues are not new to the United Nations; indeed, in 1945 the signatories to the United Nations Charter created a model for the command and control of United Nations forces.

While the cold war ensured that this model …

The Commander In Chief And United Nations Charter Article 43: A Case Of Irreconcilable Differences?, James W. Houck

Faculty Scholarship

Part II of this paper provides an overview of the U.N. Charter's framework for collective security, with a particular focus on the Charter's provision for the. creation, command, and control of U.N. military forces. During the Cold War, this framework fell into desuetude, and U.N. forces that participated in enforcement actions, such as Korea and Iraq, as well as peacekeeping operations, were created in ad hoc fashion outside the Charter's framework. Part III examines this development and considers how the conclusion of an Article 43 agreement might alter the President's authority under international law to pursue U.S. interests while participating …

The Eichmann Trial, The Jewish Question, And The American-Jewish Intelligentsia, Pnina Lahav

Faculty Scholarship

The abduction, trial, and execution of Adolf Karl Eichmann by the state of Israel, fifteen years after the shutdown of the crematoria at Auschwitz, challenged the American Jewish intelligentsia to confront the Jewish question.4 What does it mean to be a Jew in America and who is an American Jew? Is the Jewish history of anti-Semitism and the Holocaust also a part of American-Jewish history? Is there a lesson in the destruction of European Jewry-the triumph of anti-Semitism, the failure of assimilation-relevant to American Jews? Is there a national component to being Jewish? Are Jews a people? If so, is …

Changing The Consent Rules For Desert Storm, George J. Annas

Faculty Scholarship

Shortly before the beginning of Operation Desert Storm, during Desert Shield, the U.S. military sought a waiver of requirements for informed consent for the use of investigational drugs and vaccines on our troops in the Persian Gulf. The danger of chemical and biologic warfare was seen as demanding this waiver, although the Nuremberg Code, other codes of medical ethics, and respect for the human rights of American soldiers seemed to caution against it. One year later it seems reasonable to review this decision. The legal maneuvering to revise consent regulations for wartime conditions provides a case study that highlights three …

Constitutional Control Of Military Actions: A Comparative Dimension, Lori Fisler Damrosch

Faculty Scholarship

The purpose of this essay is to examine some aspects of the legal framework for military activity in the internal law of some of the world's most powerful states. The international community has a major stake in the constitutional evolution of member states as regards the authority to decide to go to war. That stake – or those interests, since they are plural (and hold some possibility for contradiction) – can be identified as follows:

(1) to strengthen trends toward constitutionalism generally, by which I mean the concept of governance based on law;
(2) to strengthen trends toward civilian control …

Saddam Hussein: Master Air Strategist, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Covert Operations, Lori Fisler Damrosch

Faculty Scholarship

As the Constitution begins its third century, the system of congressional oversight of covert action is only in its second decade. In the ancient history of covert action – before the intelligence oversight reforms of the l 970s – Congress did not involve itself in covert operations. After giving the Central Intelligence Agency standing authority to "perform such other functions and duties related to intelligence affecting the national security as the National Security Council may from time to time direct," Congress paid little attention to what the Executive did under this authority. The era of congressional noninvolvement came to an …

Politics Across Borders: Nonintervention And Nonforcible Influence Over Domestic Affairs, Lori Fisler Damrosch

Faculty Scholarship

It is time for a fresh look at the norm of nonintervention in domestic affairs, as applied to nonforcible efforts to influence another state's internal politics. The existence of such a norm is widely proclaimed, and it is commonly assumed to be a legal obligation rather than a mere practice of comity or aspirational objective. For governments, scholars and international organs alike, the "rule" against interference in internal politics seems to be an article of faith; but despite the frequency of its incantation in international discourse, how the norm applies to nonforcible conduct is inadequately understood.

This article considers the …

What The Constitution Means By Executive Power, Charles J. Cooper, Orrin Hatch, Eugene V. Rowstow, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Congress And The Executive: Who Calls The Shots For National Security? – Remarks By Lori Fisler Damrosch, Lori Fisler Damrosch

Faculty Scholarship

Professor Firmage's reaffirmation of the Framers' conception of a President who would wait for congressional instructions appeals to traditional values of democratic control and congressional primacy that have deep roots in our national consciousness. But this model of presidential passivity has some of the same strengths and weaknesses as the advocacy of chastity to solve today's problems of teenage pregnancy and sexually transmitted disease. The basic values may be sound, but when one moves from the assertion of those values to the identification of policy prescriptions, then it becomes clear that contemporary problems are too complex to be solved by …

Curtiss-Wright Comes Home: Executive Power And National Security Secrecy, Harold Edgar, Benno C. Schmidt Jr.

Faculty Scholarship

Collectively we face no greater challenge than maintaining sensible perspectives on national security issues. Central to this task is the need to achieve a tolerable balance between secrecy and openness in public debate on such issues. There are real threats to our nation, and we would be foolish to ignore them; history teaches that no culture is guaranteed survival. Yet, how to respond to such threats must be profoundly controversial. The virtue of liberal society is that it values highly the realization of private preferences; the sacrifice of those desires to attain another's vision of collective security will never be …

Banning The Bomb: Law And Its Limits, Lori Fisler Damrosch

Faculty Scholarship

We can all agree with the contributors to this volume that nuclear weapons present the threat of unimaginable devastation that could bring an end to civilization and even to life on this planet. The grim calculations and stark images come back again and again, but they cannot be repeated too often: over 50,000 weapons in the United States and Soviet arsenals, each with a destructive force dwarfing the explosions at Hiroshima and Nagasaki; radiation effects producing indescribable suffering and death; environmental damage that defies quantification or prediction; the specter of nuclear winter rendering the earth uninhabitable. No rational being can …

The Military Justice System And Command Accountability, Charles J. Dunlap Jr.

Faculty Scholarship

The Long Commission, which investigated the terrorist bombing of the Beirut Marine barracks, recommended punitive action against officers in the chain of command. The president, however, ruled out courts-martial. This article examines the concept of command accountability and the role of the military justice system.

Professional dereliction and incompetence have rarely been punished since World War II. . . . Failure to do so has bred an atmosphere of professional unaccountability that encourages, because it does not penalize, repetition of failure on the battlefield.

Vietnam Amnesty – Problems Of Justice And Line-Drawing, Kent Greenawalt

Faculty Scholarship

The troublesome issue of pardon for crimes connected with the Vietnam War raises some of the most complex and difficult questions in the philosophy of law. What are the purposes of criminal punishment? Under what conditions is violation of obligations imposed by law morally justified? When, and on what conditions, is it proper to excuse those who have violated the law for conscientious reasons? How much should decisions whether to pardon turn on what offenders "deserve" and how much should they turn on what will be socially acceptable and promote future social harmony? How far should the desirability of dispositions …

Book Review, Robinson O. Everett

Faculty Scholarship

reviewing Joseph W. Bishop, Jr., Justice Under Fire: a Study of Military Law (1974)

All Or Nothing At All: The Defeat Of Selective Conscientious Objection, Kent Greenawalt

Faculty Scholarship

The generosity of the United States Supreme Court to conscientious objectors whom Congress has declined to exempt from military service has apparently ended. In Gillette v. United States, decided with Negre v. Larsen, the Court decisively closed the door on claims that those conscientiously opposed to participation in particular wars are entitled by statute or constitutional right to an exemption from military service. Mr. Justice Marshall's majority opinion first disposes of the statutory claim. According to the opinion, the relevant language of § 6(j) of the Military Selective Service Act of 1967," conscientiously opposed to participation in war …

Presidential War-Making, Henry Paul Monaghan

Faculty Scholarship

The Vietnam "war" has convinced many persons that the president of the United States claims apparently unlimited power to commit this country to war. Not surprisingly, therefore, considerable interest has focused on the powers that inhere in the presidency. And many critics of the war – those who in other times and in other contexts might have been sympathetic to a spacious conception of presidential power – have concluded that the Vietnam conflict is not only a tragic error, but is the direct result of unconstitutional conduct by the president. I cannot accept this view; at bottom, it seems to …

Selective Service: Some Certain Problems And Some Tentative Answers, Michael E. Tigar, Robert J. Zweben

Faculty Scholarship

No abstract provided.

Book Review, Robinson O. Everett

Faculty Scholarship

reviewing Walker, Military Law (1954)