forthcoming scholarship

* forthcoming scholarship

Controlling the Recourse to War by Modifying Jus in Bello

Ryan Goodman
New York University – School of Law

2009 YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW, Forthcoming

According to a bedrock principle of international law, the rules regulating the recourse to war and the rules regulating conduct during war must be kept conceptually and legally distinct. The purported independence of the two domains – the ‘separation principle’ – remains unstable despite its historic pedigree. This essay explores recent developments that threaten to erode the separation. The author analyzes, in particular, doctrinal innovations that result in the regulation of the recourse to war through alterations of jus in bello. International and national institutions have incentivized states to pursue particular paths to war by tailoring the rules that regulate conduct in armed conflict. Some warpaths are accordingly rewarded, and others are penalized. The article then explores potential consequences, first, on state behavior involving the use of force and, second, on state behavior involving the conduct of warfare. One significant conclusion is that these recent developments channel state behavior and justifications for using force toward security-based and strategic rationales. These efforts – whether intended or not – risk suppressing ‘desirable wars’ and inspiring ‘undesirable wars.’ These recent developments also undercut humanitarian protections by undermining the mechanisms for compliance with legal norms on the battlefield.

“Intelligence Interviewing: Teaching Papers and Case Studies: A Report from the Study on Educing Information”

Intelligence Science Board

April 2009

Steve Aftergood’s Secrecy News Blog provides an overview and link to this 211-page document here.

"Presidential War Power in the Deliberative Moment – An Empirical Study of Congressional Constitutional Deliberation and Balance of War Power"

CHI-TING TSAI, Cornell University – School of Law
Email: ct257

This paper examines how congressional deliberation over the constitutionality of a use of force affects the war power relationship between the president and Congress. In particular, it presents empirical data on whether and how Congress exerts its attempts to control presidential war power through deliberation, on the limits of congressional ability to regulate a war, on historical patterns of the presidential unilateral use of force, and on the institutional conditions for good congressional deliberation. My main argument is that congressional deliberation over the constitutionality of a use of force is a primary influence on Congress’s ability to exert its will through the passage of legislation to check the president’s use of force.

I focus on congressional floor debates recorded in the Congressional Record (1989-2009) over different use of force events occurring from 1989 to 2003. These incidents are collected from the Correlates of War Project Dataset. I cluster 229 congressional deliberations on the constitutionality of the use of force and bills thereof into 14 military events according to the war timeline depicted by the Correlates of War Project Dataset.

In response to the main research question, I present three empirical models. The first empirical model demonstrates that a higher level of congressional deliberation over a use of force influences Congress to impose a higher level of control over presidential war power. The second model demonstrates that as long as Congress imposes control over a military deployment, the president systematically resists that control.

Although the second model demonstrates that congressional attempts to check presidential war power cannot prevent the president from taking unilateral military action, I argue that this result suggests that it is even more important for Congress to have better deliberation and to try to impose a check on the president, which can create an unequivocal legal and political accountability for the president. Therefore, I present the third empirical model to demonstrate that congressional rule-setting, including referral of a bill to committee, an adoption of open-rule floor debate, and deliberation over a non-annual budget bill, is the primary factor determining the quality of congressional deliberation.

Bagram, Boumediene, and Limited Government

Robert Knowles
Chicago-Kent College of Law
Marc D. Falkoff
Northern Illinois University College of Law

DePaul Law Review, Vol. 59, 2010

The United States’ prison at Bagram Airbase in Afghanistan is the latest front in the battle over the extraterritorial reach of the Constitution. Habeas litigation on behalf of Bagram detainees has begun establishing how the writ of habeas corpus extends beyond U.S. territory to active war zones, and it has begun to refine the limits of presidential power in the war on terror. This Article explains why, as the courts wrestle with these issues, their foremost task should be to determine whether the Constitution authorizes the U.S. government to suspend the protections of the writ, rather than to discover whether detainees abroad possess a “right” to judicial review of the legality of their detentions. More broadly, we suggest that the U.S. Supreme Court’s new multifactor balancing test for determining the extraterritorial reach of the writ (announced in June 2008 in Boumediene v. Bush1) must be understood as embodying a limited government approach, rather than a rights-based approach, to defining the global reach of the Constitution.

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