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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Holder v. Humanitarian Law Project (cert petition in 2339B case); forthcoming scholarship

June 30, 2009

1. Holder v. Humanitarian Law Project, No. 08-1498 (S. Ct.) (petition for certiorari)

I was remiss not to circulate this much earlier.  On June 4, the Justice Department petitioned for cert in the never-ending 9th Circuit civil litigation challenging the constitutionality of the 1996 material support law, 18 USC 2339B.  The petition is posted here: http://www.scotusblog.com/wp/wp-content/uploads/2009/06/us-petition-humanitarian-6-4-09.pdf.  HLP’s opposition brief is due next Monday, July 6th.  This one most certainly bears watching.

2. Forthcoming scholarship

Targeted Killing in U.S. Counterterrorism Strategy and Law

Kenneth Anderson, Professor of Law, Washington College of Law, American University

The Brookings Institution, Georgetown University Law Center and the Hoover Institution

Forthcoming in Legislating the War on Terror An Agenda for Reform (Benjamin Wittes, ed.)

It is a slight exaggeration to say that Barack Obama is the first president in American history to have run in part on a political platform of targeted killings—but not much of one. During the campaign, he openly sought to one-up the Republican nominee, Sen. John McCain, in his enthusiasm for the use of targeted strikes in Pakistan against al Qaeda figures. “You know,” he said in his speech at the Democratic National Convention, “John McCain likes to say that he’ll follow [Osama] Bin Laden to the Gates of Hell, but he won’t even go to the cave where he lives.”[i] That he would, as president, follow bin Laden to his cave, with or without the cooperation of the Pakistani government, he made perfectly clear. “If we have actionable intelligence about high-value terrorist targets and President [Pervez] Musharraf won’t act, we will,” he said in another speech.[ii] Indeed, while he criticized President Bush for being too aggressive in many aspects of counterterrorism, with respect to targeted killings, his criticism was the polar opposite: “The Bush administration has not acted aggressively enough to go after al Qaeda’s leadership,” he said. “I would be clear that if Pakistan cannot or will not take out al Qaeda leadership when we have actionable intelligence about their whereabouts, we will act to protect the American people. There can be no safe haven for al Qaeda terrorists who killed thousands of Americans and threaten our homeland today.”[iii]

Obama did not take long, on assuming office, to begin keeping his promise. On January 23, 2009 a mere three days into his presidency, strikes by Predator drones in the tribal areas of Pakistan destroyed two compounds and killed numerous people, reportedly including a high-value target.[iv] Strikes continued, even expanded, over the successive months, and administration officials made clear that they had no plans to curtail them—even as they reined in coercive interrogations and announced the closure of Guantánamo Bay.[v]

Obama was right as a candidate and is correct as president to insist on the propriety of targeted killings—that is, the targeting of a specific individual to be killed, increasingly often by means of high technology, remote-controlled Predator drone aircraft wielding missiles from a stand-off position. The strategic logic that presses toward targeted stand-off killing as a necessary, available and technologically advancing part of counterterrorism is overpowering. So too is the moral and humanitarian logic behind its use. Just as crucial programs of Predator-centered targeted killing are underway now in Afghanistan and, with increasing international controversy, Pakistan, over the long term these programs of stand-off targeted killing will be an essential element in United States counterterrorism into the future—and with targets having little or nothing to do with today’s iteration of the war on terror.[vi] Future administrations, even if they naturally prefer to couch the matter in softer terms, will likely follow the same path. Even if the whole notion seems to some disturbingly close to arbitrary killing, not open combat, it is often the most expedient—and, despite civilian casualties that do occur, most discriminatingly humanitarian—manner to neutralize a terrorist without unduly jeopardizing either civilians or American forces.

But there’s a paradox in Obama’s embrace of targeted killing: Even as the strategic and humanitarian logic for it increases in persuasiveness, the legal space for it and the legal rationales on which it has been traditionally justified are in danger of shrinking. They are at risk of shrinking in ways that might surprise members of Congress and the Obama Administration. And they are at risk of shrinking through seemingly innocuous, unrelated legal policy actions that the Obama Administration and Congress might be inclined to take in support of various political constituencies, usually related to broadly admirable goals of human rights and international law.

American domestic law—the law codifying the existence of the CIA and defining its functions—has long accepted implicitly at least some uses of force, including targeted killing, as self-defense toward ends of vital national security that do not necessarily fall within the strict terms of armed conflict in the sense meant by the Geneva Conventions and other international treaties on the conduct of armed conflict. Categories of the use of force short of armed conflict or war in a juridical sense—by intelligence services such as the CIA, for example—or by military agents in furtherance of national self defense and vital security interests, yet outside of the legal condition of armed conflict, date back in codified law to the founding of the CIA and, in state practice by the United States and other sovereigns, far further still. Yet as a matter of legal justification, successive administrations have already begun to cede this ground. Even the Bush Administration, with its unrivaled enthusiasm for executive power, always sought to cast its killing targets as the killing of combatants in what it legally characterized as armed conflicts, governed by the laws of war on the conduct of hostilities, known as “international humanitarian law” (IHL). This concession, however, if followed by the Obama Administration and beyond, will likely reduce the practical utility of a policy and security tool of both long-standing provenance and proven current value. It will likely reduce the flexibility of the United States to respond to emerging threats before they ripen into yet another war with non-state terrorists, and it will reduce the ability of the United Sates to address terrorist threats in the most discriminating fashion advancing technology permits.

At this moment in which many policymakers, members of Congress and serious observers see primarily a need to roll back policies and assertions of authority made by the Bush Administration, any call for the Obama Administration and Congress to insist upon powers of unilateral targeted killing and to claim a zone of authority outside of armed conflict governed by IHL that even the Bush Administration did not claim must seem at once atavistic, eccentric, myopic and perverse. Many will not much care that such legal authority already exists in international and U.S. domestic law. Yet the purpose of this chapter is to suggest that, on the contrary, the uses to which the Obama Administration seeks to put targeted killing are proper, but they will require that it carefully preserve and defend legal authorities it should not be taking for granted and that its predecessors, including the Bush Administration, have not adequately preserved for their present day uses.

People who threaten serious harm to the United States will not always be al Qaeda, after all. Nor will they forever be those persons who, in the words of the Authorization for the Use of Military Force (AUMF), “planned, authorized, committed or aided” the attacks of September 11.[vii] As I will explain, it would have been better had the Bush and Clinton Administrations, for their parts, formulated their legal justifications for the targeted uses of force around the legal powers traditionally asserted by the United States: the right of self-defense, including the right to use force even in circumstances not rising to the level of an “armed conflict” in order to have firmly fixed in place the clear legal ability of the United States to respond as it traditionally has. Although the United States still has a long way to go to dismember al Qaeda, its affiliates and subsidiaries, although Osama bin Laden and key al Qaeda terrorist leaders remain at large, and although the President of the United States still exercises sweeping powers both inherent and granted by Congress to use all national power against the perpetrators of September 11, time moves on. New threats will emerge, some of them from states and others from non-state actors, including terrorist organizations. Some of those new threats will be new forms of jihadist terrorism; others will champion new and different causes. Even now, Islamist terror appears to be fragmenting into loose networks of shared ideology and aspiration rather than tightly vertical organizations linked by command and control.[viii] It will take successive feats of intellectual jujitsu to cast all of the targets such developments will reasonably put in the cross hairs as, legally speaking, combatants.

Yet the problem is still deeper and more immediate than that, for the accepted space for targeted killings is eroding even within what a reasonable American might understand as the four corners of our conflict with al Qaeda. In many situations in which any American president, Obama certainly included, would want to use a targeted killing, it is unclear to some important actors—at the United Nations, among our allies, among international law scholars, and among NGO activists—as a matter of international law that a state of armed conflict actually exists or that a targeted killing can qualify as an act of self-defense. The legal situation, therefore, threatens to become one in which, on the one hand, targeted killing outside of a juridical armed conflict is legally impermissible and, on the other hand, as a practical matter, no targeted killing even within the context of a “war” with al Qaeda is legally permissible, either.

Congress’s role in this area is admittedly a peculiar one. It is mostly—though not entirely—politically defensive in nature. After all, the domestic legal authorities to conduct targeted killings and other “intelligence” uses of force have existed in statutory form at least since the legislation that established the Central Intelligence Agency in 1947 and in other forms long pre-dating that.[ix] The problem is that although domestic legal authority exists for the use of force against terrorists abroad, currents are stirring in international law and elsewhere that move to undermine that authority. Powerful trend and opinion-setting—so-called “soft law”—currents are developing in ways that, over time, promise to make the exercise of this activity ever more difficult and to create a presumption, difficult to overcome, that targeted killing is in fact both illegitimate and, indeed, per se illegal except in the narrowest of war-like conditions. The role of Congress is therefore to reassert, reaffirm, and reinvigorate the category as a matter of domestic law and policy, and as the considered, official view of the United States as a matter of international law.

“Great Power Security”

Chicago Journal of International Law, 2009
U of St. Thomas Legal Studies Research Paper No. 09-10

ROBERT J. DELAHUNTY, University of St. Thomas School of Law (Minnesota)
Email: RJDELAHUNTY@stthomas.edu
JOHN YOO, University of California at Berkeley School of Law
Email: YOO@LAW.BERKELEY.EDU

The change of administration in the US may have encouraged the belief that collective security will finally have its day. A conventional wisdom also seems to be emerging among many, if not most, academics in international law that the strengthening of the UN security system would advance international peace and security. Although the twenty-first century has brought radically different security threats from those that existed when the UN Charter was first written, many seem to believe that concentrating authority in the Security Council remains the most effective international legal process for the use of force.

Resurrecting the formal UN Charter rules on the use of force, however, would have the perverse effect of making international peace and security more difficult to achieve. Not only has that system failed in practice, but it is not designed to deal with the changing nature of warfare. The Charter?s use-of-force rules were addressed to the prevention or reduction of armed conflict between states. They are not adequate to deal with the more contemporary problems of civil war, mass violence against civilians at the hands of non-state terrorist groups, the protection of populations from genocide or other atrocities inflicted by their own governments, or the violence that is bred within failed or failing states.

What is needed is a new international legal regime for regulating the use of force by states against the threats of these varying kinds. The overarching goal of this regime should be the maintenance of international peace and stability through the pursuit of global welfare. Unlike the UN Charter system, which is designed to drive the use of force by states close to zero, a reconstructed international legal system should seek to produce the optimal level of force, thus allowing armed interventions for the purpose of preventing catastrophic harms.

The emergence of new great powers (China, the EU, and India, for example) and the re-emergence of older ones (such as Russia) have apparently begun to shift the post?Cold War world from unipolarity to multipolarity. Global peace and security in the future may no longer be underwritten by an (assumedly) ?hegemonic? US. Instead, the world may experience a return to the kind of great power politics that was prevalent in Europe before World War I (and arguably, throughout recorded human history). While we would not attempt to forecast how an emerging multipolar world would work, an explicit great power system could well ameliorate the collective action problems that the current UN Charter system exacerbates, and thus could advance global welfare.

“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.

“Is ASIO a Good Judge of Character?”

Alternative Law Journal, June 2009

SUSAN GAIL HARRIS RIMMER, Centre fo International and Public Law
Email: susan.harris-rimmer@anu.edu.au

Character issues are of increasing importance in the role of the Australian Security and Intelligence Organisation (ASIO) in assessing the national security risk posed by aliens. For example, ASIO assessments underpinned the long-term detention of two Iraqi refugees on Nauru, and the deportation of US activist Mr Scott Parkin. This article considers how ASIO national security assessments are made, whether they constitute a form of character testing, and what accountability mechanisms are in place to challenge such assessments.

“The Commission’s New Border Package: Does It Take Us One Step Closer to a ‘Cyber-Fortress Europe’?”

CEPS Policy Brief No. 154, March 2008

ELSPETH GUILD, Radboud University Nijmegen – Faculty of Law, Kingsley Napley – Department of Immigration, The British Institute of International and Comparative Law, London School of Economics & Political Science (LSE)
Email: e.guild@jur.kun.nl
SERGIO CARRERA, Centre for European Policy Studies
Email: sergio.carrera@ceps.be
FLORIAN GEYER, Centre for European Policy Studies (CEPS)
Email: florian.geyer@ceps.eu

On 13 February 2008, the European Commission presented a new ‘Border Package’, setting out its vision of how to foster the further management of the EU’s external border. In assessing the desirability and feasibility of the new system, CEPS JHA specialists find the Commission’s proposal ill-considered and likely to have substantial counterproductive effects on the ground. They expect it to create the same sort of public relations problems as do similar US measures among a travelling public that finds itself increasingly the object of state suspicion, with no concrete reason or grounds.

“As Necessity Creates the Rule: Eisentrager, Boumediene and the Enemy – How Strategic Realities Can Constitutionally Require Greater Rights for Detainess in the Wars of the Twenty-First Century”

University of Pennsylvania Journal of Constitutional Law, Vol. 11, No. 2, 2009

MICHAEL BAHAR, JAG Corps, U.S. Navy
Email: mbahar@post.harvard.edu

With the 2006 publication of the Army-Marine Corps Counterinsurgency Field Manual, adhering to law has officially become a strategic imperative. Yet, court decisions and briefs still operate under the assumption that the application of law to the battlefield shackles the military. Even decisions like Boumediene, in which the Court granted Guantanamo Bay detainees habeas rights, does so apologetically. But this article demonstrates that law is not only a strategic necessity in today?s conflicts, but that the Constitution itself is a strategically pragmatic document that was designed to allow restrictions on individual rights when military necessity requires it – but only so long as that necessity exists. The Court must continue to exercise its constitutional duty to review executive claims of necessity, and as the strategic situation changes, so must the level of rights afforded to detainees. Accordingly, this article posits a battlefield jurisprudence. At the far end, only constitutional enemies, defined as those individuals connected to a state engaged in hostilities, can receive prisoner of war treatment, including indefinite detention. For all other individuals, the strategic or pragmatic Constitution affords lawmakers the opportunity to tailor rules to optimize the level of legal rights and thereby maximize the chances for a positive outcome for the U.S.

“Power Through Clarity: How Clarifying the Old State-Based Laws Can Reveal the Strategic Power of Law”

University of Pennsylvania Journal of International Economic Law, Vol. 30, No. 4, 2009

MICHAEL BAHAR, JAG Corps, U.S. Navy
Email: mbahar@post.harvard.edu

As the United States takes on the violent non-state actors, whose arsenals now exceed those of many states, policymakers and leaders should not give up on the ?old-fashioned? rules designed for relations among states. When properly clarified, the rules reveal powerful avenues for defending national security against non-state threats like Al Qaeda. While we cannot wage war against non-state actors and remain consistent with international and constitutional law, we can use force against those who take a direct part in hostilities, commit violent attacks outside the jurisdiction of any state, or engage in action sufficiently hostile to warrant immediate measures in individual or unit self-defense. Ultimately, force will not solve many of the great twenty-first century security challenges on its own – for national security must be a national exertion just as international security must be a global one – but, there is great cause to hope that in the next decades, a renewed embrace of the international and constitutional law of war will fully reveal the empowering abilities of both and the law?s ability to enhance the security of all.

“Balancing Formalist Methods with Functionalist Needs: Why Youngstown Remains the Most Viable Framework for Analyzing National Security Issues”

ELIZABETH BAHR, affiliation not provided to SSRN
Email: ebahr@gmu.edu
JOSH BLACKMAN, George Mason University – School of Law
Email: joshblackman@gmail.com

Part I of this paper briefly introduces the two competing schools of jurisprudential thought of formalism and functionalism. Part II analyzes Youngstown through both the formalist and functionalist lenses, and highlights how these lenses separately influenced the majority opinion of Justice Black and the more widely cited concurring opinion of Justice Jackson.

Part III carries the analysis from both Parts I and II, and discusses the influence of formalism and functionalism specifically on the areas of national security law where separation of powers issues are implicated. By analyzing the strengths and weaknesses of both formalism and functionalism as presented in separation of powers cases, Part III elucidates why it was inevitable that Justice Jackson?s functionalist and pragmatic concurring opinion in Youngstown prevailed as the most popular judicial prism through which courts dissect and analyze national security-related separation of powers issues.

Parts IV and V of this paper undertake an empirical analysis of some of the major cases decided since the 1952 Youngstown decision that have either explicitly or implicitly applied Justice Jackson?s three-tiered Youngstown framework. Since 1952, two types of Youngstown cases have emerged: those that fit neatly within the three-tiered framework – like the Dames & Moore scenario in Part IV – and those that must employ an implicit four-tiered framework in order to assess the limits of executive authority – such as the Guantanamo Detention cases in Part V. By thoroughly examining not only the published opinions, but also the appellate briefs of the petitioners and respondents, as well as any related amicus briefs or applicable legislative history, Parts IV and V expose the seemingly arbitrary nature of a functionalist method of judicial review, and show how this method of analysis – although it is flexible and allows judges to reach a necessary result – inevitably forces all courts to examine unreliable and malleable atextual sources. However, these Parts also show that the benefit to a functionalist framework in national-security cases, versus a more formalist framework is that the risk of judicial overreaching is avoided, and the precise scope of the President?s Article II powers continue to remain undefined, and thus, unimpeded by judicial precedent and available for future use should the national security of the United States ever require them.