nationalsecuritylaw forthcoming scholarship

November 18, 2012

"The Civilianization of Military Jurisdiction"

THE CONSTITUTION AND THE FUTURE OF CRIMINAL LAW IN AMERICA, John T. Parry, Song Richardson, eds., Cambridge University Press, 2013
American University WCL Research Paper No. 2012-42

STEPHEN I. VLADECK, American University – Washington College of Law
Email: svladeck

Most discussions of current and future issues in American criminal law and procedure tend to ignore completely the role of the military in shaping that body of jurisprudence. Perhaps this lacuna reflects widespread – if tacit – acceptance of the maxim that ‘military law is to law as military music is to music.’ Or it may represent generations of lawyers inculcated with Justice Black’s oft-quoted characterization of the U.S. court-martial system as a ‘rough form of justice.’ Regardless, the assumption appears to be that there is little for true criminal law scholars to learn from judicial proceedings presided over by jurists – and juries – in uniform.

This chapter, part of a collection of essays on the future of criminal law in America, suggests that students and scholars of criminal law would do well to pay increasing attention to the military justice system, if for no other reason than to understand and appreciate the subtle but significant expansions of military jurisdiction over the past quarter-century to encompass a growing range of offenses or offenders previously subject to the exclusive jurisdiction of the civilian courts. To that end, Part I summarizes the evolution of court-martial jurisdiction, including the Supreme Court’s 1987 decision in Solorio v. United States, holding that service members may be tried for any offense committed while in the military no matter its connection (or lack thereof) to their ‘service,’ and the recent decision by the Court of Appeals for the Armed Forces upholding the expansion of court-martial jurisdiction to also encompass at least some civilian contractors serving with or accompanying the armed forces in the field during ‘contingency operations,’ such as the U.S. deployments in Iraq and Afghanistan. Part II offers an analogous account of military commissions, documenting in detail the important expansion in the scope of their authority enmeshed within the Military Commissions Acts of 2006 and 2009, which largely untethered such tribunals’ jurisdictional limits from the international laws of war. Indeed, although the D.C. Circuit recently held that such an expansion of military jurisdiction could not be applied retroactively, at least one judge expressly endorsed Congress’s power to so provide going forward.

Part III steps back to consider the implications of these developments. Inasmuch as the civilianization of substantive military law has been seen largely as a positive development by courts and commentators, I do not think we can so quickly say the same thing about the civilianization of military jurisdiction. Although it might appear at first blush that the civilianization of substantive military law reduces the risks that might otherwise have followed from unduly expansive military jurisdiction, the chapter concludes by offering a structural defense of a principle first expressed by Justice Johnson almost 200 years ago – that, where military jurisdiction is concerned, Congress should be confined to ‘the least possible power adequate to the end proposed.’ Whether or not the civilianization of substantive military law has been a normatively desirable result, my thesis is that, in the long-term, the civilianization of military jurisdiction would be to the detriment of American constitutional law in general, and the constitutional rights of criminal defendants, in particular.

National Security Law in the News: A Guide for Journalists, Scholars, and Policymakers

Paul Rosenzweig, Timothy McNulty, Ellen Shearer (eds.) (ABA Standing Committee on Law and National Security and the Medill School of Journalism, Northwestern University)

Much in America changed on September 11, 2001. One of those changes was the language of discourse in our public dialog about war and terrorism. But few realize that a robust and detailed body of law and policy lies behind that dialog. This new guide will demystify that law and policy by providing the necessary legal background and context for journalists and others who want to understand ongoing policy debates.

Written by seasoned experts, each chapter contains a summary of legal and policy issues of significance and is accompanied by an annotated bibliography for further reading. The book is divided into four parts:

Part I provides an overview of the basic issues of constitutional and international law including discussion of the scope of the president’s authority, the meaning and effect of the First Amendment, and the role of international law in American courts.

Part II turns the focus to the military and explores questions about military organization and operations.

Part III looks at the world of domestic law enforcement and counterterrorism.

Part IV covers homeland security issues.

An added bonus: a list of experts to contact for additional background information is included in each chapter.

Bouncing the Executive’s Blank Check: Judicial Review and the Targeting of Citizens

Harvard Law & Policy Review

Samuel S. Adelsberg

The U.S. government has afforded more judicial protection to those whom it seeks to wiretap than to those whom it seeks to kill—at least in the case of Anwar al-Awlaki. After analyzing the case law relevant to the process afforded to U.S. citizens in targeting operations, the article argues that even in wartime, the President does not have a “blank check” when it comes to the rights of citizens. Despite this, the decision to target a citizen is currently made, in its entirety, within the executive branch, which has been less than forthcoming about the procedures used or the criteria considered in these determinations. The article makes the case that this targeting regime is problematic as both a constitutional and policy matter.

The normative crux of the article calls for the creation of a circumscribed court to adjudicate, ex ante, the legality of targeting operations in specific cases where there is prior knowledge that the target is a U.S. citizen. An emergency procedure would allow the government to bypass this court in certain controlled situations, but would prescribe a robust post hoc review. After responding to potential criticisms to this proposal from both civil libertarians and the military/intelligence establishment alike, the article concludes by emphasizing that only through a flexible judicial solution—a solution that is sensitive to both due process and national security concerns—can the practice of targeting citizens remain a lawful and effective tool in the ongoing confrontation with global terrorism.

The Green Arms Race: Reorienting the Discussions on Climate Change, Energy Policy, and National Security

Siddhartha M. Velandy (US Marine Corps)

Harvard National Security Journal

In the midst of a shifting international order, the U.S. Department of Defense stands uniquely positioned to intensify global innovation in the energy arena. This Article describes the mechanics by which DoD can ignite a mutually-beneficial green energy “arms race.” In this role, the military reprises a historical function of driving technological advancement, combining its operational requirements and legislative prerogatives to grow investment and create consistent demand. The Article also discusses the legal and regulatory regimes that may be enlisted and exported through transgovernmental networks to spread the benefits of the use of alternative fuels and increased energy efficiency, the potential impact of the Green Arms Race on global climate change efforts, and the limits on the impact of greening the force in bringing about positive change. The Green Arms Race has the potential to succeed where existing international and unilateral efforts to encourage efficient energy innovation and address climate change have failed.