Military, War, and Peace Commons^™

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 …

Freedom Of The Press In Wartime, David A. Anderson

University of Colorado Law Review

The Press Clause of the First Amendment should be understood to require the government to permit coverage of war. Up to now, the Supreme Court has ascribed little independent significance to the Press Clause. It has protected the press under the Speech Clause when possible, and denied press claims that would require reading the Press Clause as creating rights not guaranteed to all speakers. Logistical and security concerns, however, make it impossible to give all speakers the access necessary to cover war. In all wars, the military tries to suppress news coverage that might undermine public support for the war. …

The Proliferation Security Initiative And The Evolution Of The Law On The Use Of Force, Mark R. Shulman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Combatant Status: It Is Time For Intermediate Levels Of Recognition For Partial Compliance, Eric Talbot Jensen

Faculty Scholarship

Under current international law, combatant status is an all-or-nothing proposition. Either a fighting force qualifies under all the criteria of article 4 of the GPW and receives all the privileges and immunities of combatant status, or a force does not qualify, and is provided no protection above that of any other civilian in the area, and may even be disqualified from the protections afforded to civilians. Given the reality of today's battlefields where the conflict is seldom between the armed forces of two nations, these requirements are counterproductive and provide a disincentive for fighters to distinguish themselves from the civilian …

One Morning In Morocco, Eli Mechanic

New England Journal of Public Policy

Presents the journal of an American student studying in Morocco based on his firsthand experiences on how Arabs viewed the Iraq war from January to May 2003. Lesson learned on March 20, 2003 where he felt the anger of Arab people upon seeing an American; Excitement of Arabs upon hearing news about dead Americans; Realization of the Moroccans on the cruelty of the Americans.

We Were Allies Once: Lessons Of D Day, 1944, Nigel Hamilton

New England Journal of Public Policy

Nigel Hamilton swivels the century around the pivot of the massive cooperation and collaboration between the United States and its allies during World War II. In the early years, European and British troops suffered a series of discouraging defeats by the Nazis, and then when the United States entered the war the great collaboration among the allies was instrumental in achieving victory in Europe. This joint effort of nations continued for a time with such institutions as the UN and NATO and other international bodies. The war in Iraq ruptured the alliance. American unilateralism has distinguished most of the debacle …

Editor's Note, Padraig O'Malley

New England Journal of Public Policy

In the months preceding the U.S. presidential election in November 2004, George Bush and John Kerry conducted what passed for a serious debate on U.S. foreign policy, especially the rationale for the war in Iraq and on the state of the "war on terror." It was easy to lose sight of the primary purpose of these two special issues of the New England Journal of Public Policy on war. So I should, perhaps, remind our readers.

The question posed was: what lessons can we draw from the wars and conflicts of the twentieth century that might help us to take …

Conflicts Diamonds: U.S. Responsibility And Response, Edward R. Fluet

San Diego International Law Journal

This Article will examine U.S. and international efforts to combat the trade in conflict diamonds. Specifically, this article will detail their failures and examine the need for U.S. backed legislation to prevent the conflict diamond trade more effectively. This article proceeds as follows: Part I will examine the effect of the conflict diamond trade on those caught in the grip of civil war and terrorism. Part II will analyze international efforts to curtail conflict diamonds trade, specifically examining international support of the Kimberley Process. Part III and IV will examine the United States'efforts to regulate conflict diamonds and the inherent …

Why Judicial Review Fails: Organizations, Politics, And The Problem Of Auditing Executive Discretion, Mariano-Florentino Cuellar

ExpressO

Every day executive branch officials make thousands of decisions affecting our security and welfare. Homeland security officials screen tens of thousands of people at the border. They decide whose name gets on government “no fly lists.” Agencies freeze suspected terrorist assets, choose what companies to inspect for environmental violations, and decide whom to prosecute. This article describes how judicial review predictably and systematically fails to prevent abuse and promote organizational learning when government officials make many such choices using their discretion to target individuals or groups. It then proposes the use of quasi-judicial audits of executive discretion as a remedy. …

Failed States, Or The State As Failure?, Rosa Ehrenreich Brooks

Georgetown Law Faculty Publications and Other Works

This article seeks to challenge a basic assumption of international law and policy, arguing that the existing state-based international legal framework stands in the way of developing effective responses to state failure. It offers an alternative theoretical framework designed to spark debate about better legal and policy responses to failed states. Although the article uses failed states as a lens to focus its arguments, it also has broad implications for how we think about sovereignty, the evolving global order, and the place of states within it.

State failure causes a wide range of humanitarian, legal, and security problems. Unsurprisingly, given …

Sounds Of Silence, Kenneth Lasson

All Faculty Scholarship

No abstract provided.

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Responsibility, Injustice And The American Dilemma, Mohammad-Mahmoud Ould Mohamedou

Buffalo Human Rights Law Review

No abstract provided.

Torture: A Collection, Bryn D. Powell

Buffalo Human Rights Law Review

Book review of Torture: A Collection, Sanford Levinson, ed.

A Call To Arms: “Taking” The Volunteer Out Of The All Volunteer Force, Jerome Dees

ExpressO

No abstract provided.

An American Gulag? Human Rights Groups Test The Limits Of Moral Equivalency, Kenneth Anderson

Popular Media

This 2005 article from the Weekly Standard criticizes the 2005 Amnesty International report and associated press releases and press conferences referring to the Guantanamo Bay detention facility as an American gulag. It more broadly criticizes the human rights movement for wanting it both ways - on the one hand, using extraordinarily inflammatory rhetoric such as raising the spectre of Soviet death camps, while on the other hand, calling for that very same, apparently deeply criminal regime, the Bush administration, to perform the tasks of human rights enforcement that the human rights movement would like to see performed elsewhere in the …

Nato Counterterrorism And Article 5: Hammer Of The North Atlantic Or Paper Tiger?, David D. Ayliffe

ExpressO

This paper concerns the development of the North Atlantic Treaty Organization's counterterrorism program. It seeks to analyze the legal implications of this development and the program's potential effectiveness. Specifically, the paper asserts that NATO's counterterrorism program is consistent with the drafting history of the North Atlantic Treaty and that Article 5 of the North Atlantic Treaty is sufficiently flexible to support future NATO counterterrorism missions.

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 …

The Case For Closing The School Of The Americas, Bill Quigley

Brigham Young University Journal of Public Law

No abstract provided.

Sosa V. Alvarez-Machain And Abu Ghraib--Civil Remedies For Victims Of Extraterritorial Torts By U.S. Military Personnel And Civilian Contractors, Scott J. Borrowman

BYU Law Review

No abstract provided.

Pluralizing International Criminal Justice, Mark A. Drumbl

Michigan Law Review

From Nuremberg to The Hague scours the institutions of international criminal justice in order to examine their legitimacy and effectiveness. This collection of essays is edited by Philippe Sands, an eminent authority on public international law and professor at University College London. The five essays derive from an equal number of public lectures held in London between April and June 2002. The essays - concise and in places informal - carefully avoid legalese and arcania. Taken together, they cover an impressive spectrum of issues. Read individually, however, each essay is ordered around one or two well-tailored themes, thereby ensuring analytic …

Securing A Journalist's Testimonial Privilege In The International Criminal Court, Anastasia Heeger

San Diego International Law Journal

This Article argues that given the unique and significant contribution of journalists to uncovering and documenting war crimes, the ICC should amend its evidentiary rules to recognize a qualified journalist's privilege. In doing so, the ICC should clearly identify who may benefit from such a privilege, clarify a procedure for balancing the need of reportorial testimony against prosecution and defense interests, and, lastly provide for mandatory consultations between the court and affected news organizations or journalists before allowing the issuance of a subpoena. Such clarity will benefit not only journalists working in war zones and the ICC, but will provide …

Countering Terrorism: From Wigged Judges To Helmeted Soldiers - Legal Perspectives On America's Counter-Terrorism Responses, Jackson Nyamuya Maogoto

San Diego International Law Journal

This Article aims to evaluate the international legal perspectives attendant to U.S. counter-terrorism measures and policy and the attendant strictures an implications. Part II commences by grappling with the uneasy relationship that legal and political complexities have foisted on the UN's ability to address terrorism and the difficult issue of the definition of terrorism. Within the context of this part, the Article also addresses the two dominant counter-terrorism paradigms-law enforcement and conflict management. Part III oves on to evaluate the law enforcement paradigm which treats terrorism as a crime engaging domestic law enforcement. This part offers a discussion of the …

"When Caterpillars Kill": Holding U.S. Corporations Accountable For Knowingly Selling Equipment To Countries For The Commission Of Human Rights Abuses Abroad, Zaha Hassan

San Diego International Law Journal

With the recent trend towards holding corporations accountable for aiding and abetting human rights abuses abroad, this paper asks the question whether corporations should be held liable for knowingly facilitating human rights abuses abroad by selling equipment widely known to be used in such abuses. To this end, the case of Caterpillar sales to Israel will here be examined. Part II provides an overview of the history of the Alien Tort Claims Act (ATCA) and its applicability in United States courts. Part III gives an overview of how corporate liability for human rights abuses abroad developed under the ATCA. Part …

The Prohibition Of Widespread Rape As A Jus Cogens, Dean Adams

San Diego International Law Journal

This Comment explains why the prohibition of widespread rape should be recognized as a jus cogens through analyses of the failure of existing international legal instruments, advances within international law towards the universal prohibition of widespread rape, and policy reasons for classifying widespread rape as a jus cogens. In doing so, this comment will demonstrate the particular timeliness of this topic by reviewing the use of widespread rape in several countries through the 1990s, the widespread rape presently occurring in Kenya, and the emerging reports from Iraq of rape committed at the hands of the Saddam Hussein regime. Finally, this …

Article 9 Of The Japanese Constitution And The Rule Of Law, Kenneth L. Port

Cardozo Journal of International and Comparative Law

The article argues that Article 9 of the Japanese Constitution was originally intended to prevent Japan from maintaining any military forces, whether for offensive or defensive purposes. Despite this, Japan now has the fourth-largest military in the world, creating a contradiction between the Constitution's intent and current reality. The article contends that the Self-Defense Forces (SDF) are unconstitutional and proposes converting them into a disaster relief organization to align with the original pacifist vision of Article 9.

The United Nations Compensation Commission And The Balancing Of Rights Between Individual Claimants And The Government Of Iraq, John J. Chung

Law Faculty Scholarship

No abstract provided.

Preemption, Assassination, And The War On Terrorism, David Ennis

Campbell Law Review

The purpose of this comment is to provide a legal framework which supports the use of assassination as a preemptive instrument against terrorism. In doing so, this comment will: (1) offer a sensible definition for assassination and its relationship to war; (2) examine both the historical and political underpinnings of the current United States policy on assassination; and (3) review sources of international customary and treaty law to extrapolate guidelines for using assassination overseas in the War on Terror.