forthcoming scholarship

July 12, 2009

* forthcoming scholarship

Square Peg in a Round Hole: Government Contractor Battlefield Tort Liability and the Political Question Doctrine

Chris Jenks (Judge Advocate General’s Corps)

Abstract:

Recent assertions of the political question doctrine by battlefield contractor defendants in tort litigation have brought new life to the doctrine while raising new questions. The lawsuits stem from incidents in both Iraq and Afghanistan and include plaintiffs ranging from local nationals suing contract interrogators and  interpreters, to contract employees suing another contractor following insurgent attacks, to U.S. service members suing contractors after vehicle and airplane crashes. The lawsuits involve tort claims, which on their face do not conjure up images of a constitutional power struggle, but in at least fifteen cases thus far contractor defendants have asserted the political question doctrine as a defense. The political question doctrine addresses whether the judiciary should review  government action or decisions and yet contractors are asserting the doctrine in cases where the government is not a named party and has remained conspicuously silent. This article analyzes the confused application of the political question doctrine to battlefield related contractor tort litigation and proposes a methodology to bring clarity to future decisions. Absent a more rigid analytical approach by the judiciary and a change in the government’s attitude, the confusion surrounding the political question doctrine and the inconsistency of its application to the inevitable future contractor cases will only grow.

“From Nuclear War to Net War: Analogizing Cyber Attacks in International Law”

Berkley Journal of International Law (BJIL), Vol. 25, No. 3, 2009

SCOTT SHACKELFORD, University of Cambridge Department of Politics and International Studies, Stanford Law School
Email: sjshacke@gmail.com

On April 27, 2007, Estonia suffered a crippling cyber attack launched from outside its borders. It is still unclear what legal rights a state has as a victim of a cyber attack. For example, even if Estonia could conclusively prove that Russia was behind the March 2007 attack there is no clear consensus on how Estonia could legally respond, whether with armed force, its own cyber attack, or some other measure. The scholarly literature dealing with these questions, as well as the ethical, humanitarian, and human rights implications of information warfare (IW) on national and international security is scarce. Treatments of IW outside the orthodox international humanitarian law (IHL) framework are nearly non-existent. This underscores the tension between classifying cyber attacks as merely criminal, or as a matter of state survival calling for the same responses as conventional threats to national security.

International law has been slow to adapt. The facts on the ground, and the widespread, amorphous use and rapid evolution of the internet in many ways challenge state sovereignty. I will advocate that the best way to ensure a comprehensive regime for cyber attacks is through a new international accord dealing exclusively with cyber security and its status in international law. Yet, the international community lacks the political will to tackle this issue directly. Until such an accord becomes politically viable, it is critical to examine how existing treaty systems may extend to cover the novel facts presented by cybe attacks. Together, existing treaties form a dual track approach to cyber attacks – one that is available for cyber attacks that do not rise to the level of an armed attack, and another that is activated once an armed attack occurs. To that end this paper will examine the most apt analogues in international law to form an appropriate legal regime for the various types of cyber attacks ? whether it is humanitarian law (laws of war), human rights law (regulation of nation states behavior), or some novel combination of these and other treaty systems. In framing this regime, it will be argued that cyber attacks represent a threat to international peace and security as daunting and horrific as nuclear war. Yet the nuclear non-proliferation model is not a useful analogy since the technology necessary to conduct IW is already widespread in the international community. Instead, other analogies will rely on communications and cyber law, space law, and the law of the sea. The main failings of existing international treaties that touch on cyber law though are that most do not carry enforcement provisions. Nor do they specify how the frameworks change or fall away entirely during an armed attack. Nevertheless, regardless of whether or not cyber attacks fall below the threshold of an armed attack these bodies of law have a role to play in forming an appropriate regime. The cyber attack on Estonia in April, 2007, presents an example of the dire need for clarity in the international law of non-conventional warfare using modern technology.

“Counter-Terrorism Law and Inchoate Offences”

GABRIEL HALLEVY, Ono Academic College, Faculty of Law
Email: hallevy@ono.ac.il

The modern definitions of the inchoate offences are well known in the criminal law since the Middle Ages both in European-Continent legal systems and in the English Common Law. They were mostly developed by the case-laws of the Star Chamber Court, which was abolished in 1640. The inchoate offences include three basic offences: Attempt, Conspiracy and Solicitation, but different legal systems defined some other offences as inchoate, such as the Aider and Abettor in Britain after the full validation of the Serious Crimes Act, 2007, c.27, s.44. In this paper it is argued, that there is a very intensive interaction between the fight against terrorism and inchoate offences. The fight against terrorism effects the definition of inchoate offences, and inchoate offences are used as a major instrument of criminal law in the legal fight against terrorism.

“Letters of Marque and Reprisal: The Constitutional Law and Practice of Privateering”

Journal of Maritime Law and Commerce, Vol. 40, No. 2, 2009

THEODORE M COOPERSTEIN, affiliation not provided to SSRN

The United States Constitution grants to the Congress the power, among others, to issue ?Letters of Marque and Reprisal.? Although the practice seems to have fallen into disuse in this century, it was an important tool of national power for the federal government created by the Framers, who placed great import on the federal government?s role in protecting international commerce and in enforcing international law.

Privateering played a significant role before and during the Revolutionary War, and it persisted in American history as an economical way to augment naval forces against an enemy in wartime. A significant outgrowth of the practice of privateering was the body of law resulting from prize court adjudications. United States courts, in deciding title to ships and goods taken prize, determined issues both of domestic and customary international law. In this manner the federal courts significantly shaped the role of international law in the United States jurisprudence as well as assured the role of the United States in the ongoing development of customary international law. Case law concerning prizes and privateering is accordingly a useful vehicle to examine the interplay of U.S. constitutional law and customary international law as they both developed through the Nineteenth Century.

Changes in the methods of warfare during the Twentieth Century diminished the role of privateering. But the Congressional authority to issue Letters of Marque and Reprisal remains. As a means to commission private actors to augment national forces in international crises, the Letter of Marque and Reprisal could yet have modern applications. It remains for innovative executive and legislative experiment to revive the ancient practice in a form befitting modern international problems.

“Civilian Military Contractors on Trial: The Case for Upholding the Amended Exceptional Jurisdiction Clause of the Uniform Code of Military Justice”

Texas International Law Journal, Vol. 44, No. 1, 2008

DAVID L. SNYDER, Fordham University – School of Law
Email: snyderdl@gmail.com

“I call it a massacre,” said a Kurdish witness to the afternoon carnage in the streets of Baghdad, “[t]hey used the law of the jungle.” American soldiers and military officials were equally appalled at the aftermath: the plume of smoke over Nisour Square having dissipated, only the bullet-riddled, lifeless bodies of unarmed civilians remained. A banner proclaiming “[t]he Creators of Life are always Victorious” fluttered eerily overhead, an optimist’s hope for Iraqi reconstruction diminished by the tumult below. This catastrophe was not, however, the work of terrorists. Rather, the deaths occurred at the hands of employees of Blackwater USA, a private security company under contract with the U.S. Department of State, whose primary mission in Iraq is to protect U.S. diplomats.

Although five Blackwater guards were indicted in December 2008 for their roles in the attacks, private military and security firms generally continue to operate with relative impunity amidst regulatory frameworks that are porous, impracticable, and rarely utilized. The solution with the greatest enforcement capability – a 2006 amendment to the Uniform Code of Military Justice (UCMJ), which extends military courts-martial to civilian contractors participating in contingency operations – faces constitutional questions and, as of the time of this writing, a failure of executive branch implementation. The resulting lacuna is startling: there are nearly 160,000 private American contractors working in Iraq, an estimated 30,000 of which provide armed military services, but there has currently been only one prosecution for an act of violence.

This Article argues that the recent change in the UCMJ should survive constitutional attack, and that subjecting employees of private military firms to courts-martial is the only sensible and practical means to ensure battlefield discipline and accountability. Part II of this Article discusses the background of the use of private military firms by the United States, and traces the development of the domestic legal framework, culminating in the recent UCMJ amendment, applicable to the industry. Part III analyzes the constitutional issues presented by the new UCMJ provision, which subjects certain civilians to the jurisdiction of military courts-martial. Finally, Part IV argues that courts facing the inevitable challenge to the new UCMJ provision should uphold the law on a number of bases. First, the founding generation’s fear of broadly subjecting civilians to draconian military justice is not applicable to the contemporary courts-martial system. Second, the Constitution does not foreclose military trials of certain civilians; the historical record details numerous occasions, dating back to the Revolutionary War, in which civilians with close connections to the armed services were held accountable by courts-martial. Finally, a late twentieth-century opinion from the Court of Military Appeals, which effectively overturned generations of precedent and principle, was wrongly decided and anomalous, and should not foreclose current legislative attempts to hold civilians who accompany the armed forces during contingency operations responsible for illegal conduct.

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forthcoming scholarship

July 5, 2009

“The United States, Israel, and Unlawful Combatants”

Duke Law School Public Law & Legal Theory Paper No. 249

CURTIS A. BRADLEY, Duke University – School of Law
Email: cbradley@law.duke.edu

This essay considers how members of a terrorist organization should be categorized under international law when the organization is engaged in an armed conflict with a nation. The proper categorization can have significant implications for the nation?s authority under both international and domestic law to subject members of a terrorist organization to military targeting and detention. As a result of judicial decisions, Israel ostensibly follows a two category approach, pursuant to which anyone who is not a lawful combatant, including a member of a terrorist organization, is a civilian. The United States, by contrast, currently follows a three category approach, whereby members of a terrorist organization can be considered ?unlawful combatants? and thus treated as legally distinct from civilians. Although the two category approach may seem at first glance to be the most protective for civil liberties, it is not clear that this is the case. If a conflict with a terrorist organization is pushed into the civilian category, it is very likely that this category will be stretched in order to accommodate the security needs of the nation. The net result may be a reduction in protection for true non-combatants. While the three category approach is less anchored in existing treaties than the two category approach, it allows for a more realistic description of how members of a terrorist organization operate. Moreover, depending on how it is defined, the third category could contain significant substantive and procedural protections that are similar to those available under the two category approach.

Reciprocity and the Law of War

Sean Watts (Creighton Law)

Forthcoming, Harvard International Law Journal, Vol. 50, No. 2, Summer (2009)

Abstract:
This article examines how the principle of reciprocity operates within the international law of war. Tracing the historical development and application of the law, the Article demonstrates that the existing law of war derives from a set of rules that are highly contingent on reciprocity. Contrary to common understanding, reciprocity strongly influences states’ interpretation and application of the law of war. The Article first identifies an obligational component of reciprocity that restricts operation of the law to contests between parties with parallel legal commitments. Second, the Article identifies an observational component of the principle that permits parties to suspend or terminate observance when confronted with breach. Although the principle of reciprocity was softened by late twentieth century legal instruments, it continues to form a critical component of the law of war and guides both pragmatic and theoretical discourse. Regardless of normative conclusions about reciprocity as a precondition to application of the law, the Article’s reciprocity-cognizant framework for understanding the law of war provides a useful platform for reform efforts.

The Army Lawyer (“International and Operational Law” edition) (May 2009)

From the Table of Contents, lots of really interesting stuff:

Foreword

Lieutenant Colonel Michael O. Lacey …………………………………………………………………………………………………………………. 1

Remarks to the 2009 Samuel Dash Conference on Human Rights Rule of Law in the Context of Military Interventions

Jeh Charles Johnson …………………………………………………………………………………………………………………………………………. 2

Seven Detainee Operations Issues to Consider Prior to Your Deployment

Major Olga Marie Anderson & Major Katherine A. Krul ……………………………………………………………………………………….. 7

Rule 99 of the Customary International Humanitarian Law Study and the Relationship Between the Law of

Armed Conflict and International Human Rights Law

Major J. Jeremy Marsh ……………………………………………………………………………………………………………………………………. 18

The Expansive Definition of “Protected Persons” in the War Crime Jurisprudence

Major Shane Reeves ………………………………………………………………………………………………………………………………………… 23

Cluster Munitions: Wonder Weapon or Humanitarian Horror?

Lieutenant Colonel Michael O. Lacey ………………………………………………………………………………………………………………… 28

Don’t Call It a SOFA! An Overview of the New U.S.-Iraq Security Agreement

Commander Trevor A. Rush ……………………………………………………………………………………………………………………………… 34

Hostile Outsider or Influential Insider? The United States and the International Criminal Court

Colonel Stuart W. Risch ……………………………………………………………………………………………………………………………………. 61

(The Army Lawyer comes out monthly and The Military Law Review is published quarterly.  Both welcome articles from all military and civilian authors on topics of interest to military lawyers.  The Army Lawyer will primarily publish practitioner oriented pieces and the MLR publishes more policy oriented articles.  In either case, our academic departments do a subject matter review on every article submitted for publication (so for instance, my department sees all international/operational law related articles) and then after acceptance to either journal, full-time professional editors work with the authors to get the article to publication.

“Ethics and Operational Realities in the War on Terror”

South Texas Law Review, Vol. 49, p. 837, 2009

MICHAEL W. LEWIS, Ohio Northern University – Pettit College of Law
Email: m-lewis@onu.edu

By examining the effects of a seemingly trivial choice, the selection of different apprehension forms, this short essay illustrates how the operational realities of soldiers engaged in counterinsurgency operations are shaped, and the ethical dimensions that go along with such choices. It urges that these operational realities be taken into account during the ongoing abstract debates about process.

“Targeting Enemy Forces in the War on Terror: Preserving Civilian Immunity”

Vanderbilt Journal of Transnational Law, Vol. 42, No. 3, p. 683, 2009

RICHARD D. ROSEN, Texas Tech University – School of Law
Email: Richard.Rosen@ttu.edu

Protocol I to the Geneva Conventions of 1949 and the interpretation given to it by many in the international community (e.g., UN, NGOs, media) provide perverse incentives to terrorist and insurgent groups to shield their military activities behind civilians and their property. In other words, the law governing targeting is fundamentally defective; it affords terrorist and insurgent groups strategic and tactical advantages from their own noncompliance with the law and their adversaries? observance of it. The consequence has been increasing noncompliance with the law and growing civilian casualties. This article proposes structural changes to the law governing targeting and attitudinal changes by those who interpret it to ensure civilians receive adequate security from armed attack.

“The Protection of National Security Whistleblowers: Imperative But Impossible A Critical Appraisal of the Scope and Adequacy of Whistleblower Protection Laws for National Security Whistleblowers”

MELISSA KHEMANI, Georgetown University
Email: melissa.khemani@gmail.com

The purpose of this paper is to undertake a critical assessment of the provisions, application and enforcement of whistleblower protection laws specifically accorded to employees in the intelligence and national security sectors. The underlying argument of this paper is that national security whistleblowers play an important role in promoting accountability and contributing to a system of checks and balances, but the current legal framework for their protection has significant weaknesses, resulting in a system that has been rightly described as ?Kafka-esque.? It is this author?s opinion that national security whistleblowers should be subject to narrower provisions of whistleblower protection because of the sensitive nature of the information to which they are privy and in turn, may disclose. However, this paper seeks to demonstrate that a balance can and should be struck between protecting both the whistleblower and national security interests, but that the current system as it stands falls short of achieving this.