Congressional Authorization and the War on Terrorism

This Article presents a framework for interpreting Congress\u27s September 18, 2001 Authorization for Use of Military Force (AUMF), the central statutory enactment related to the war on terrorism. Although both constitutional theory and constitutional practice suggest that the validity of presidential wartime actions depends to a significant degree on their relationship to congressional authorization, the meaning and implications of the AUMF have received little attention in the academic debates over the war on terrorism. The framework presented in this Article builds on the analysis in the Supreme Court\u27s plurality opinion in Hamdi v. Rumsfeld, which devoted significant attention to the AUME Under that framework, the meaning of the AUMF is determined in the first instance by its text, as informed by a comparison with authorizations of force in prior wars, including declared wars. In ascertaining the scope of the necessary and appropriate force that Congress authorized in the AUMF, courts should look to two additional interpretive factors: Executive Branch practice during prior wars, and the international laws of war. Although nondelegation concerns should not play a significant role in interpreting the AUMF, a clear statement requirement is appropriate when the President takes actions under the AUMF that restrict the liberty of non-combatants in the United States. The authors apply this framework to three specific issues in the war on terrorism: the identification of the enemy, the detention of persons captured in the United States, and the validity of using military commissions to try alleged terrorists

Humanitarian Intervention: Evolving Norms, Fragmenting Consensus (Remarks)

Traditionally, the evolution of customary international law was understood as a gradual process: in some idealized model, we might see first a few states, and then a few more, implicitly agreeing to follow a practice, and then we would gradually begin to see additional states doing the same thing. We would also gradually accumulate evidence that these various states are acting in such a way because they consider themselves legally bound to do so. Then, over time, we’ll see more and more states following suit both in word and deed, until at some point we can say with a great deal of confidence that such and such has evolved into a binding norm of customary international law. That’s the idealized process through which norms of customary international law develop. In real life, of course, it’s rarely so neat and tidy. In fact, much of the time, the evolution of customary international law looks less like a gradual, trouble-free emergence of consensus than a continual process of contestation—a continual process of resistance and conflict between states, if you will. By “conflict” the author doesn’t necessarily mean armed force, but rather diplomatic conflict of all sorts: dueling demarches, dueling public statements, and so on. Norms relating to humanitarian intervention offer a typical example. We are in a period in which we are seeing a norm struggling to emerge, if you will, but that process is not a smooth one, has not been a smooth one, and is unlikely to be a smooth one in the future. Indeed, when we think about norms related to humanitarian intervention or the Responsibility to Protect, if anything what we have seen has been a process of reaction, counter-reaction, counter-counterreaction and counter-counter-counter-reaction. We are still going through that cycle

Military Intervention, Regional Organizations, and Host-State Consent

Two ethical frameworks have dominated the discussion of organ donation for long: that of property rights and that of gift-giving. However, recent years have seen a drastic rise in the number of philosophical analyses of the meaning of giving and generosity, which has been mirrored in ethical debates on organ donation and in critical sociological, anthropological and ethnological work on the gift metaphor in this context. In order to capture the flourishing of this field, this article distinguishes between four frameworks for thinking about bodily exchanges in medicine: those of property rights, heroic gift-giving, sacrifice, and gift-giving as aporia. These frameworks represent four different ways of making sense of donation of organs as well as tissue, gametes and blood, draw on different conceptions of the relations between the self and the other, and bring out different ethical issues as core ones. The article presents these frameworks, argues that all of them run into difficulties when trying to make sense of reciprocity and relational interdependence in donation, and shows how the three gift-giving frameworks (of heroism, sacrifice and aporia) hang together in a critical discussion about what is at stake in organ donation. It also presents and argues in favour of an alternative intercorporeal framework of giving-through-sharing that more thoroughly explicates the gift metaphor in the context of donation, and offers tools for making sense of relational dimensions of live and post mortem donations

Presidential War Powers as a Two-Level Dynamic: International Law, Domestic Law, and Practice-Based Legal Change

There is a rich literature on the circumstances under which the United Nations Charter or specific Security Council resolutions authorize nations to use force abroad, and there is a rich literature on the circumstances under which the U.S. Constitution and statutory law allows the President to use force abroad. These are largely separate areas of scholarship, addressing what are generally perceived to be two distinct levels of legal doctrine. This Article, by contrast, considers these two levels of doctrine together as they relate to the United States. In doing so, it makes three main contributions. First, it demonstrates striking parallels between the structure of the international and domestic legal regimes governing the use of force, and it explains how this structure tends to incentivize unilateral action. Second, it theorizes that these two bodies of law are interconnected in previously overlooked ways, such that how the executive branch interprets law at one level is informed by the legal context at the other level. Third, it documents these interactions over time for several important components of the law on the use of force and shows that this two-level dynamic has played a significant role in furthering the practice-based expansion of unilateral war powers. The Article concludes by arguing that both scholars and policy-makers seeking to shape the law on the use of force need to take better account of this dynamic