Military, War, and Peace Commons^™

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 …

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 …

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 …

State-Supported Terrorism And The U.S. Courts: Some Foreign Policy Problems, Barry E. Carter

Georgetown Law Faculty Publications and Other Works

Terrorism is an evil that the United States and other civilized countries should combat aggressively. Fortunately, these countries have many tools they can use in their fight against terrorism, among them military force (as we have just demonstrated in Afghanistan), covert actions, and a variety of economic sanctions against a country or group that supports terrorists. These sanctions - which would preferably be applied in union with other countries, though unilaterally if necessary - can include freezing assets, as well as ending or limiting U.S. government programs (ranging from landing rights to foreign aid), cutting off exports to or imports …

A Man Lost In The Gray Zone, David Luban

Georgetown Law Faculty Publications and Other Works

The Rudolf Kastner trial was one of the three great scandals that rocked Israeli party politics in the 1950s (the others were the negotiations with Germany for Holocaust reparations and the so-called "Lavon affair"). Although Leora Bilsky describes it as an "almost forgotten trial," it has not been forgotten by subsequent writers: it makes an important cameo appearance in Arendt's Eichmann in Jerusalem; it features prominently in Tom Segev's The Seventh Million (1991); Yehuda Bauer's Jews for Sale? (1994) takes pains to refute the charges against Kastner; and it inspired two novels - Amos Elon's Timetable (1980) and Neil Gordon's …

Book Review: New Chemical Weapons Convention: Implementation And Prospects, David A. Koplow

Georgetown Law Faculty Publications and Other Works

Review of The New Chemical Weapons Convention: Implementation and Prospects by Michael Bothe, Natalino Ronzitti, and Allan Rosas (1998).

This book, a fine-grained, expert-level analysis of several of the most intricate legal and policy issues arising in connection with the 1993 Chemical Weapons Convention (CWC), also serves as a vivid symbol of the "coming of age" of arms control. For all their strategic significance and political innovation, earlier generations of arms control treaties--bilateral or multilateral, concerning nuclear, chemical, biological, or other weapons--could not plausibly have spawned this type of 600-page exegesis or inspired the painstaking, inch-by-inch explorations presented in its …

Skeptical Scrutiny Of Plenary Power: Judicial And Executive Branch Decision Making In Miller V Albright, Cornelia T. Pillard, T. Alexander Aleinikoff

Georgetown Law Faculty Publications and Other Works

In 1996, just a few months after the United States successfully urged the Supreme Court in United States v. Virginia to invalidate as sex-discriminatory the male-only admissions policy at the Virginia Military Institute, the District of Columbia Circuit in Miller v. Albright upheld a federal law that used an express, sex-based distinction. Section 309(a) of the Immigration and Nationality Act (INA) makes it harder for male U.S. citizens than for female citizens to convey their citizenship to their children if those children were born abroad out of wedlock and the other parent was not a U.S. citizen. Notwithstanding the United …

The Stories We Must Tell: Ugandan Children And The Atrocities Of The Lord's Resistance Army, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

This essay is about stories--the stories that we are told and the stories that we, in turn, tell to others. It has become a truism that we have lost our faith in master narratives and that the "real" is composed of many competing narratives, all fragmentary, contradictory, overlapping. In this article, the author discusses the problems this view poses for those of us who see ourselves as advocates and activists rather than solely--or primarily--as scholars, but who nonetheless seek to combine social activism with intellectual rigor and honesty. In particular, she discusses the dilemmas this creates for the human rights …

Fame, The Founding, And The Power To Declare War, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Almost without discussion, and essentially without opposition, the Framers and Ratifiers of the United States Constitution vested in Congress the "Power ... To declare War, [and] grant Letters of Marque and Reprisal." During the past fifty years, one of the fiercest controversies in constitutional law has concerned what the Founders meant by this grant. It is a debate that has had, and that continues to have, dramatic importance. When Presidents committed troops or prepared to commit troops in Korea, Vietnam, Grenada, Panama, Iraq, Somalia, Haiti, and, most recently, Bosnia, they claimed that the Constitution did not require them to seek …

Understanding Constitutional War Powers Today: Why Methodology Matters, Jane E. Stromseth

Georgetown Law Faculty Publications and Other Works

With the Cold War over, Americans have grown more introspective about the role of the United States in global affairs. It could hardly be otherwise. America's rise to military preeminence, its overseas commitments and priorities, and its basic sense of international purpose all were forged by circumstances of the past fifty years that have changed dramatically. The Soviet threat is gone; once shaky allies in Europe and Asia are now comparatively stable and prosperous; the specter of cataclysmic nuclear war has receded while regional conflicts, ethnic strife, and humanitarian emergencies have moved to center stage. Although the world is no …

How Do We Get Rid Of These Things? Dismantling Excess Weapons While Protecting The Environment, David A. Koplow

Georgetown Law Faculty Publications and Other Works

The startling successes of contemporary international arms control negotiations call to mind the old aphorism that one should be careful about what one wishes for, because the wish just might come true.

Today, disarmament diplomacy has wrought unprecedented triumphs across a wide range of global bargaining issues, producing a series of watershed treaties that offer spectacular new advantages for the security of the United States and for the prospect of enduring world peace. At the same time, however, these unanticipated negotiation breakthroughs have themselves generated unforeseen implementation problems, spawning a host of novel difficulties for which the traditional tools and …

Back To The Future And Up To The Sky: Legal Implications Of ‘Open Skies’ Inspection For Arms Control, David A. Koplow

Georgetown Law Faculty Publications and Other Works

The United States, the Soviet Union, and their respective allies are currently engaged in the negotiation of a new arms control agreement on "Open Skies," reviving a failed concept from the 1950s. The treaty would permit each country to overfly the others on short notice and with great frequency, and to use diverse, sophisticated sensors to photograph key military and defense-related installations. This type of mutual intelligencegathering arrangement offers great advantages for national security and global stability, reducing the possibility of surprise attack and accordingly mitigating the necessity for maintaining large, offsetting military deployments. At the same time, however, the …

Carrying A Big Carrot: Linking Multilateral Disarmament And Development Assistance, David A. Koplow, Philip G. Schrag

Georgetown Law Faculty Publications and Other Works

This article proposes, as a new element of the "liberal internationalism" that should characterize the post-Cold War world, a simultaneous solution to these three problems. The nations of the world should negotiate a series of multilateral agreements to stop the spread of advanced weaponry, and include in each of them, as an overt incentive for developing states to accept the disarmament and verification obligations, provisions that explicitly require the affluent, developed states to make specified monetary and in-kind transfers to the third world parties. The new regime should also provide stronger-than-customary treaty procedures for clarifying ambiguities, adjudicating claims, and resolving …

Long Arms And Chemical Arms: Extraterritoriality And The Draft Chemical Weapons Convention, David A. Koplow

Georgetown Law Faculty Publications and Other Works

Chemical warfare has long been considered a particularly loathsome form of combat. The specter of unprotected soldiers and nearby noncombatants incapacitated or killed within moments by invisible, silent, odorless vapors discharged by a far-distant enemy has terrified many, and has also energized repeated international attempts to prohibit, or at least to moderate, these applications of deadly science.