Articles Posted in Military Law

Cornell law professor Michael C. Dorf comments on a recent decision by a federal district court judge in Texas declaring unconstitutional the US’s male-only military draft. Dorf points out that the judge’s decision defies the Supreme Court’s admonition that federal court judges should follow even outdated Supreme Court precedents, “leaving to th[at] Court the prerogative of overruling its own decisions” and considers whether there is any other reason that admonition should not apply.

NYU law professor Samuel Estreicher and JD candidate David Moosmann comment on some of the legal issues presented by President Trump’s declaration of a national emergency to secure funds for a border wall along the southern US border. Estreicher and Moosmann argue that there is a need for legislation tightening up the standards for presidential declarations of a national emergency, and for Congress to review and consolidate the seemingly vast array of statutes that authorize emergency measures on a presidential declaration.

Illinois Law professor Lesley Wexler explains why the open air burn pits as used in recent conflicts such as Iraq and Afghanistan are being called the “new Agent Orange.” Wexler describes the challenges combatants, their children, contractors, and civilians have had in obtaining care for long-term injuries as a result of the use of Agent Orange during the Vietnam War and expresses concern that the same may occur for burn pits.

Cornell University Michael C. Dorf explains the symbolism of President Donald Trump's announcement during his State of the Union address that he would be keeping the detention facility at Guantánamo Bay open. Dorf points out that despite the extraordinarily high cost of keeping the facility open, Republicans support its continued operation simply as repudiation of President Obama, who wanted to close it. Dorf points out that Republicans' opposition to closing Gitmo during the Obama presidency also jibed with the not-so-veiled racism of many Republicans who questioned Obama's citizenship and commitment to the US (disregarding the fact that President Bush actually released more Gitmo detainees than President Obama did).

Illinois Law professor Lesley M. Wexler comments on the Trump administration’s reversal of longstanding policy on cluster munitions. Wexler describes both what changes and what remains the same under the new policy and considers whether, taken in the context of other similar shifts in policy, the Trump administration is implementing its “America-First” approach and discarding prior policies that upheld international law norms.

Illinois Law professor Lesley Wexler explains why the U.S. military would benefit from strengthening its pro-dignity and anti-discrimination norms, rather than implementing divisive discriminatory policies such as President Trump’s recent tweet regarding transgender service members. Wexler points to concrete ways inclusivity fortifies the military and calls upon leadership to embrace inclusive policies.

Chapman University Fowler School of Law professor Ronald D. Rotunda explains the difficulty of determining whether a nation has chemical weapons and praises President Trump’s recent military response to the use of chemical weapons in Syria.

Cornell University law professor Michael Dorf reviews Sidney Tarrow’s new book, War, States, and Contention. Dorf considers how Tarrow’s view of the role of contentious politics applies in the current political campaign and examines the relation between national security and domestic social movements.

Cornell University visiting law professor Joseph Margulies describes four events last week that received little attention from the media or the public despite their import. Margulies argues that the public’s disinterest in these events reveals the normality of the war on terror.

Chapman University law professor Ronald Rotunda critiques the U.S. Government’s asserted power to prosecute alleged war criminal in military commissions.

Justia columnist and attorney David Kemp discusses the request by government leaker Chelsea Manning, formerly Bradley Manning, that she receive hormone treatment while in military prison. Kemp discusses several decisions by federal courts, all of which have held that prisons are constitutionally required to provide transgender inmates with necessary medical care. He argues that as a matter of public policy and constitutional law, the military prison holding Manning should also provide her needed medical care.

Justia columnist and Cornell law professor Michael Dorf comments on the law applicable to the forced feeding, via tubes, of those Guantanamo detainees who refuse to eat, as they are on a hunger strike, and are becoming dangerously weak. Human rights groups condemn the forced feeding as cruel, but the government says that it is better than the detainee’s dying. With U.S. law unclear on the force-feeding issue as it related to detainees, Dorf analyzes the situation, citing two relevant Supreme Court precedents and other legal sources that might shed light on the issue. He also suggests that the detainees’ best hope, in this situation, might be to invoke international law, though their chances of prevailing will still be slim.

Justia columnist and Hofstra law professor Joanna Grossman comments on DoD’s recent decision to remove the ban on women in combat. After providing a brief history of women in the military, Grossman characterizes the ban as having been a stubborn form of sex discrimination, and notes that the ban had been honored in the breach, as military women were increasingly participating in combat roles that put them in harm's way, as a number of their deaths have sadly proven. Thus, Grossman calls on the military to recognize the reality that women already occupied what are in effect combat roles, even before the DoD restrictions were lifted, and to ensure military women’s equality by addressing the high level of sexual abuse in the military.

Justia columnist and Cornell law professor Michael Dorf comments on a recent decision by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, throwing out the conviction of Salim Ahmed Hamdan, a Yemeni who was captured in Afghanistan in 2001. Dorf chronicles Hamdan’s long legal journey, and the repercussions that it has had for U.S. law. Dorf also explains that while the most recent decision regarding Hamdan is narrow, it nevertheless carries symbolic significance, casting doubt on the Bush Administration’s and the Obama Administration’s respective, and similar, detainee policies.

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner comments on the official beginning of the military commission proceedings against Khalid Shaikh Mohammad and his four co-defendants. As Mariner notes, the United States is seeking the death penalty against all five men, who are accused of a litany of crimes relating to the 9/11 attacks: terrorism, hijacking, murder, conspiracy, and intentionally causing serious bodily injury. Mohammad, as Mariner explains, has taken responsibility for the attacks, and the other four defendants are alleged to have played key organizational or financial roles in the attacks. Mariner argues that for the verdict in these cases to be seen as just, the defendants must be granted basic procedural guarantees and must face an impartial and independent tribunal. However, Mariner argues, neither the procedures that will be used, nor the tribunal itself, fit these requirements. In particular, Mariner emphasizes the key differences between judicial independence and military discipline, when it comes to the administration of justice, and urges that civilian courts, not courts-martial, should be the tribunals adjudicating these cases. She cites the Zacarias Moussaoui civilian trial as a success in showing that the civilian justice system can work well even in terrorism cases, and suggests that these cases, too, should have gone forward in the civilian justice system.

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner discusses the controversial subject of drone warfare, and the question of what rules should apply to it. She covers Attorney General Eric Holder’s speech on the issue, given earlier this month, which focused upon the use of lethal force against U.S. citizens. Mariner notes that this speech—building on earlier analyses by State Department Legal Adviser Harold Koh and Defense Department General Counsel Jeh Johnson—is the most thorough Obama Administration analysis of these issues to date. Mariner also contrasts the U.S. and Israeli frameworks for targeted killings—noting that the U.S. seems to be borrowing, lately, from the Israeli model. In particular, she compares the rules outlined in the Holder speech with the rules outlined in an Israeli Supreme Court opinion on similar topics. Finally, Mariner makes some predictions about the kind of approach we may see in the future in this area of law, which may combine elements of both military and civilian justice.

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner discusses two recent steps toward limiting the scope of the detention provisions of the National Defense Authorization Act (NDAA), the controversial, recently-passed federal statute regarding the military detention and trial of terrorist suspects. The first step was an Obama Administration policy directive that effectively negates an NDAA section that purports to require that non-citizens suspected of strong links to terrorism be held in military, not civilian, custody. The second step was the commencement of a Senate Judiciary Committee hearing on the Due Process Guarantee Act, which was introduced after the NDAA was enacted into law. As Mariner explains, the Due Process Guarantee Act would protect both citizens and lawful permanent residents arrested in the U.S. against being detained indefinitely under a military rationale. Moreover, the Act would set a baseline prohibition on indefinite military detention in such cases, allowing such detention to be used only when Congress explicitly provides for it. Mariner sees these steps as constituting progress, but contends that amending the NDAA itself would have been a better remedy—especially as a presidential directive can always be reversed by a future president.

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner comments on the Due Process Guarantee Act of 2011—a bill that states that a congressional authorization for the use of military force does not allow the indefinite detention of citizens or lawful permanent residents arrested in the U.S., unless Congress explicitly provides for such detention. As Mariner explains, this clear-statement rule would offer citizens and resident non-citizens in the U.S. default protection against indefinite detention without charge, unless Congress plainly authorized such detention. Nevertheless, Mariner notes that she is of two minds about the Act. On one hand, Mariner believes that the Due Process Guarantee Act would effect a welcome change to the detention provisions of the controversial NDAA (National Defense Authorization Act) regarding U.S. citizens and lawful permanent residents of the U.S. On the other hand, though, Mariner points out that the Due Process Guarantee Act would do nothing to solve the problem of the indefinite detention, by the U.S., of non-resident aliens at Guantanamo—which Mariner contends is, by far, the U.S.’s most urgent and glaring detention problem.

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner comments on the provisions of the NDAA (National Defense Authorization Act) relating to the detention of citizens and non-citizens. She begins by noting that, last week, the tenth anniversary of the military prison at Guantanamo occurred, and was the subject of comment by the media, but this brief focus on the prison and its prisoners was the exception to the rule. In addition, she points out that the NDAA addresses the very issue that Guantanamo embodies, indefinite detention without charge, and does so in a way that has sparked sharp criticism from conservatives and liberals alike. Mariner focuses here, however, on a less-remarked aspect of the NDAA: Although its provision for indefinite detention for American citizens has been highly controversial, far less attention has been paid to its provision for indefinite detention for non-citizens—of which there are 171 being currently held at Guantanamo; all but five indefinitely (of the five, four were convicted and one faces terrorism and other charges). Mariner calls for more attention to the NDAA’s treatment of non-citizens, reminding readers that indefinite detention for Americans remains theoretical, but indefinite detention for those incarcerated at Guantanamo is very real.

In the second of a two-part series of columns on the highly controversial NDAA (National Defense Authorization Act), Justia columnist and Hunter College Human Rights Program Director Joanne Mariner continues to explain and comment upon on the bill, which is now the law. Mariner explains President Obama’s reasons for signing the bill, despite what he called “serious reservations” about its provisions that regulate the detention, interrogation and prosecution of suspected terrorists; and what his signing statement, accompanying the bill, said. Mariner notes that at this point, Obama is responsible for three key steps in America’s entrenchment of indefinite detention without trial: (1) justifying indefinite detention in litigation opposing the release of detainees held at Guantanamo; (2) issuing an executive order on indefinite detention; and (3) signing the NDAA. Mariner chronicles the road that took America to the passage of the NDAA, detailing the contributions of the Bush and Obama Administrations. In addition, she considers the most controversial aspect of the NDAA: its supposed allowance of the indefinite detention even of American citizens. Finally, Mariner notes that any fair reading of the NDAA ought to include a set of basic points, which she explains; and calls for a repeal of the NDAA’s detention provisions, as well as for the closure of Guantanamo.