Military, War, and Peace Commons^™

The Ancient Magna Carta And The Modern Rule Of Law: 1215 To 2015., Vincent R. Johnson

St. Mary's Law Journal

This article argues the text of the Magna Carta, now 800 years old, and reflects many of the values that are at the center of the modern concept of the Rule of Law. A careful review of its provisions reveals the Magna Carta demonstrates a strong commitment to the resolution of disputes based on rules and procedures that are consistent, accessible, transparent, and fair; and to the development of a legal system characterized by official accountability and respect for human dignity.

Lincoln V. The Proslavery Constitution: How A Railroad Lawyer's Constitutional Theory Made Him The Great Emancipator., Paul Finkelman

St. Mary's Law Journal

Abstract Forthcoming.

A Constitutional Amendment Allowing Broader Campaign-Finance Reform Would Not Criminalize Political Satire., Christopher W. Bell

St. Mary's Law Journal

Campaign finance remains a perennial issue, because contributions and expenditures define the political campaigns which shape our democracy. While a majority of the American public supports limiting campaign spending, campaign finance reform remains near the bottom of most voters’ priorities. Reformers have called the lack of the public’s interest “[o]ne of the persistent mysteries of campaign finance reform.” Citizens United v. F.E.C. focused national attention on the role of money in politics. Citizens United evoked such strong reactions, because it represents the two competing versions of the concept of freedom of speech: “free speech as serving liberty” and “free speech …

The Role Of Naval Power In The Development Of Customary International Law, John J. Chung

Law Faculty Scholarship

No abstract provided.

Red-Teaming Nlw: A Top Ten List Of Criticisms About Non-Lethal Weapons, David A. Koplow

Georgetown Law Faculty Publications and Other Works

Critics of non-lethal weapons (NL W) have asserted numerous complaints about the concepts, the Department of Defense research and development efforts, and the pace of innovation in the field. These critiques challenge the cost of the programs, their consistency with international law, the adverse public reaction to some of the devices, and the dangers of proliferation, among other points. This article summarizes the various assessments, in form of a "top ten list" of criticisms, and evaluates their weight. The author concludes that some of these points of objection have merit, but overall, the NLW enterprise is worthy of continuation and …

The Panopticon Of International Law: B’Tselem’S Camera Project And The Enforcement Of International Law In A Transnational Society, Pini Pavel Miretski, Sascha-Dominik Vladimir Oliver Bachmann

Osgoode Hall Law Journal

This paper analyzes the influence of transnational non-state actors on compliance with international legal rules as part of Michel Foucault’s power/knowledge structure. In particular, it examines the effects of the Shooting Back project, organized by the Israeli non-governmental organization B’Tselem, on the level of investigations of alleged violations of the law of occupation. In 2007, B’Tselem supplied Palestinians living in high-conflict areas with video cameras in order to capture, expose, and “seek redress for” human rights violations in the Occupied Territories. According to Jeremy Bentham’s principles of panopticism, power should be visible and unverifiable. The implementation of these principles by …

The Michael Morton Act: Minimizing Prosecutorial Misconduct., Cynthia E. Hujar Orr, Robert G. Rodery

St. Mary's Law Journal

Twenty-five years ago, Texas prosecutors significantly limited the pre-trial discovery it disclosed to criminal defendants. As a result of this policy, innocent individuals accused of murder, like Michael Morton, were denied their right to due process. Michael Morton was incarcerated for twenty-five years following a wrongful murder conviction. He was denied access to crucial evidence, which included a bandana with the victim’s blood and the killer’s hair, and eyewitness accounts describing the killer at or near the time of the murder. The prosecutor purposely withheld this evidence from Michael Morton; but thanks to the efforts of the Innocence Project, he …

Potential Tort Liability For Personal Use Of Drone Aircraft., Benjamin D. Mathews

St. Mary's Law Journal

In the United States, the use of personal drones has become more prevalent. Businesses now use drones to deliver products to consumers. Consumers now use drones to video and photograph special events. As a result, new laws are needed concerning personal usage of drones. The number of drone sales is predicted to double by 2024. This is reflected by companies such as Parrot, a vendor of private drones, who in the first quarter of 2014 sold 670,000 drones. Citizens whose personal liberties have been infringed upon by another individual’s use of personal drones, often resort to common law torts because …

Hamrick V. Ward: Clarifying Implied Easement Law., Courtney R. Potter

St. Mary's Law Journal

Abstract Forthcoming.

Compensation Forfeiture: Stacking Remedies Against Disloyal Agents And Employees., George P. Roach

St. Mary's Law Journal

Abstract Forthcoming.

Bombs And Babies: The Unfortunate Results Of Conversion Of A Military Defense Site To A Residential Neighborhood, Kara Consalo

Journal Publications

During World War II, the U.S. Army used over 12,000 acres in
what is now the eastern edge of the City of Orlando as a gunnery, bomb
training, and military demonstration range. Due to its close proximity to
the Orlando Army Air Base (now Orlando Executive Airport) and the
Pinecastle Army Airfield (now Orlando International Airport), this
property was perfectly located for airborne target practice. The area,
known as the Pinecastle Jeep Range was intentionally bombarded with
explosive and chemical bombs, rockets, bullets, scrap metal, and even
an old Jeep! After the war, the Army terminated its lease and the …

The Covert Use Of Drones: How Secrecy Undermines Oversight And Accountability, Milena Sterio

Law Faculty Articles and Essays

Under the Obama Administration, the number of drone strikes has sharply increased, prompting criticism and concern. As one commentator has noted, “[u]nder Obama, drone strikes have become too frequent, too unilateral, and too much associated with the heavy-handed use of American power.” Many scholars have focused on the legal issues arising from the use of drones, analyzing their legality under applicable law of self-defense, as well as under international humanitarian law and international human rights law.

This Article highlights another problematic aspect of the current American use of drones, which is secrecy. As will be argued below, because a large …

Technology And The Law On The Use Of Force: New Security Challenges In The Twenty-First Century, By Jackson Maogoto, Asaf Lubin

Articles by Maurer Faculty

Review of:

Technology and the Law on the Use of Force: New Security Challenges in the Twenty-First Century. By Jackson Maogoto. Oxford, UK: Routledge, 2015. Pp xviii, 111. Price: $117.71 (Hardcover).

Cyber War Crimes: Islamic State Atrocity Videos And The Laws Of War, David P. Fidler

Articles by Maurer Faculty

The Islamic State has combined its extreme violence with digital and cyber technologies to produce and distribute globally videos recording atrocities it commits. This article argues that those in the Islamic State who make and distribute these atrocity videos are committing war crimes under international law. After introducing the unprecedented phenomenon the atrocity videos represent (I.), the article first examines the relationship between international law and propaganda in war and peace (II.) The article then argues the atrocity videos violate prohibitions in international humanitarian law and constitute war crimes (III.). The article concludes by presenting criticisms of this argument and …

Clearing The Path: The Perils Of Positing Civil Society In Conflict And Transition, Timothy W. Waters

Articles by Maurer Faculty

Can there be a general theoretical perspective on civil society's involvement in transitional justice? This article considers this question in its application to the Israeli-Palestinian conflict. Within the study of transitional justice and conflict resolution, civil society - a notoriously plastic concept - can be understood narrowly as rights-oriented groups working “for” peace, but the term is equally available to describe a broader array of communities that can either promote or prevent peace and justice.

It is, in fact, quite difficult to sustain a theoretical distinction between them, because transitional justice does not escape the dictates of politics - of …

Liberty, Security, And Judicial Review In The War On Terror: An Analysis Of Supreme Court Approaches To Deference In A Post-9/11 Context, Jacob Oppler

Senior Independent Study Theses

In times of war, the government acts to suppress threats to national security, often curtailing or restricting American civil liberties. Over the course of American history, the Supreme Court has reviewed this legal conflict between civil liberties and national security policies during war. Scholars generally observe the Court’s judicial review as deferential to the government. The War on Terror presents new and different challenges to American civil liberties. While this legal conflict has emerged again under the conditions of a war against terrorism, the war itself is markedly unlike past wars in American history. This research seeks to explain how …

The “Space Side” To “Harmful Interference”—Evaluating Regulatory Instruments In Addressing Interference Issues In The Context Of Satellite Communications, Frans G. Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

Interference issues in the context of satellite communications can, in principle, be tackled with legal means from a variety of angles, due to the multifaceted character of both interference and satellite communications as a sector. From that perspective, the present contribution addresses the most important regulatory instruments available to address the particular aspects of satellite communications related to their usage of outer space, and represents a first summary effort to evaluate their particular scope, approach, and general effectiveness.

American Military Justice: Responding To The Siren Songs For Reform, David A. Schlueter

Faculty Articles

Today, the American military justice system is being subjected to sweet and enticing calls for reform. At first hearing, the well-intentioned proposed reforms appeal to a sense of justice. On closer examination, however, those proposed reforms threaten the essence and functionality of an effective and efficient system of criminal justice that is applied in world-wide settings, in both peacetime and in war.

In the last several decades, an increasing number of commentators have recommended reforms to virtually every component of the military system. The most recent round of proposals arose from frustration and anger that many feel towards the military’s …

The Landwarnet School, The Army Learning Model, And Appreciative Inquiry: How Is A Centralized Training Organization Improved By Introducing Decentralization?, Lisa Jayne Stamper

College of Graduate Studies: Theses & Dissertations

This exploratory, qualitative case study describes how a centralized training organization (LandWarNet School) was improved by introducing decentralization (Army Learning Model) toward “the best competitive position” or "sweet spot," defined by Brafman and Beckstrom (2006) as “enough decentralization for creativity, but sufficient structure and controls to ensure consistency” (pp. 189, 191). Any presence of the six chaordic elements of a decentralized organization, as described by Hock (1999), was also considered.

LandWarNet School (LWNS) trains approximately 6000 US Army Soldiers annually and is centrally organized. The new Army Learning Model (ALM) is a vision for a more decentralized training approach where …

Civilian Protection: The Imperative Role Of Civil Society, Collen Kelly

Dissertations and Theses

No abstract provided.

Sentencing Complexities In National Security Cases, Chris Jenks

Faculty Journal Articles and Book Chapters

Military national security courts-martial infrequently occur. When they do occur, military counsel, judges, and court personnel endeavor to perform their function at a high level. Unfortunately, the process by which the U.S. government conducts classification reviews and the military’s inexperience in national security cases often results in the form of safeguarding classified information trumping the substantive function of the underlying trial process. And by the time the sentencing phase is reached, understandable but unfortunate focus is placed on simply concluding the trial without mishandling classified information.

This article examines the sentencing complexities in military national security cases, first defining a …

State Labs Of Federalism And Law Enforcement 'Drone' Use, Chris Jenks

Faculty Journal Articles and Book Chapters

This article reviews and assesses current state legislation regulating law enforcement use of unmanned aerial systems (UAS). The legislation runs the gamut of permissive to restrictive and even utilizes different terms for the same object of regulation, UAS. These laws are the confused and at times even contradictory extension of societal views about UAS. The article reviews the U.S. Supreme Court’s manned aircraft trilogy of cases, California v. Ciraolo, Florida v. Riley, and Dow Chemical v. U.S. and two significant technology based decisions, Kyllo v. U.S. and U.S. v. Jones, and applies them to current state efforts to regulate law …

Sentencing Complexities In National Security Cases, Chris Jenks

Faculty Journal Articles and Book Chapters

Military national security courts-martial infrequently occur. When they do occur, military counsel, judges, and court personnel endeavor to perform their function at a high level. Unfortunately, the process by which the U.S. government conducts classification reviews and the military’s inexperience in national security cases often results in the form of safeguarding classified information trumping the substantive function of the underlying trial process. And by the time the sentencing phase is reached, understandable but unfortunate focus is placed on simply concluding the trial without mishandling classified information.

This article examines the sentencing complexities in military national security cases, first defining a …

United Nations Peace Operations: Creating Space For Peace, Chris Jenks

Faculty Journal Articles and Book Chapters

Despite over 120 countries contributing over 118,00 personnel in support of sixteen different United Nations peace operations around the world, and at a cost exceeding $US 7.83 billion, not much is known about these operations. This chapter seeks to alter, however slightly, that information deficit. This chapter first reviews the UN Charter basis for peace operations and explores the different between Chapter VI Peacekeeping and Chapter VII Peace Enforcement. The chapter then traces the historical development of peace operations from their cold war origins to the latest organizational structure within the U.N.’s Department of Peacekeeping Operations. The chapter then explores …

Self-Interest Or Self-Inflicted? How The United States Charges Its Service Members For Violating The Laws Of War, Chris Jenks

Faculty Journal Articles and Book Chapters

This chapter explores the aspects of self-interest implicated by the US military prosecuting its own service members who violate the laws of war under different criminal charges than it prosecutes enemy belligerents who commit substantially similar offences. The chapter briefly explains how the US asserts criminal jurisdiction over its service members before turning to how the US military reports violations of the laws of war. It then sets out the US methodology for charging such violations as applied to its service members, and compares this methodology to that applied to those tried by military commissions. The chapter then discusses the …

A Military Justice Solution In Search Of A Problem: A Response To Vladeck, Geoffrey S. Corn, Chris Jenks

Faculty Journal Articles and Book Chapters

In “Military Courts and Article III,” law professor Steve Vladeck proposes a wholesale replacement of the foundation upon which court-martial jurisdiction has stood since the inception of the United States. In an effort to provide a unifying theory grounded in international law, Professor Vladeck fails to properly distinguish the jurisdiction established by Congress to regulate the armed forces from the jurisdiction established to punish violations of the laws of war. This conflation yields confusion about military jurisdiction which ripples throughout the theory. Our response, which centers on courts-martial, argues that Professor Vladeck has offered a solution in search of a …

The Field Trip, Randy Harritan

Mighty Pen Project Anthology & Archive

A soldier grapples with horrifying events in Vietnam, then comes home to grapple with the effects those events have had on him.

Articles, stories, and other compositions in this archive were written by participants in the Mighty Pen Project. The program, developed by author David L. Robbins, and in partnership with Virginia Commonwealth University and the Virginia War Memorial in Richmond, Virginia, offers veterans and their family members a customized twelve-week writing class, free of charge. The program encourages, supports, and assists participants in sharing their stories and experiences of military experience so both writer and audience may benefit.

Blue Devil 2, Malik Hodari

Mighty Pen Project Anthology & Archive

A soldier in Vietnam continues to face interpersonal conflict as he fights to keep his team alive and complete his mission.

Articles, stories, and other compositions in this archive were written by participants in the Mighty Pen Project. The program, developed by author David L. Robbins, and in partnership with Virginia Commonwealth University and the Virginia War Memorial in Richmond, Virginia, offers veterans and their family members a customized twelve-week writing class, free of charge. The program encourages, supports, and assists participants in sharing their stories and experiences of military experience so both writer and audience may benefit.

Blue Devil 1, Malik Hodari

Mighty Pen Project Anthology & Archive

A soldier in Vietnam keeps his team alive and moving while grappling with interpersonal conflict.

Articles, stories, and other compositions in this archive were written by participants in the Mighty Pen Project. The program, developed by author David L. Robbins, and in partnership with Virginia Commonwealth University and the Virginia War Memorial in Richmond, Virginia, offers veterans and their family members a customized twelve-week writing class, free of charge. The program encourages, supports, and assists participants in sharing their stories and experiences of military experience so both writer and audience may benefit.

The Green To Blue Pipeline: Defense Contractors And The Police Industrial Complex, Karena Rahall

Faculty Articles

Images of police in tactical gear, pointing automatic weapons at unarmed demonstrators in Ferguson, Missouri, represented a flashpoint in public awareness that American police are rapidly militarizing. Federal grants have been quietly arming police with tanks, drones, and uniforms more suited to waging war than patrolling the streets. As police have acquired more military gear, SWAT teams and deployments have proliferated. Even small towns receive surplus military materiel to fight the “wars” on drugs and terrorism. In addition, police training uses a military approach that threatens to transform the traditional police mandate of protecting and serving into one of engaging …