The Political Balance of Power over the Military: Rethinking the Relationship between the Armed Forces, the President, and Congress

Recent events related to the planning and execution of the war in Iraq, most notably the perceived 2003 firing of then Army Chief of Staff Eric Shinseki, have raised concerns over the effect of Executive Branch dominance of the military and how that dominance impacts the ability of Congress to obtain timely and important information. Such actions, perceived to discourage members of the military from providing candid views to Congress when they differ with the Administration, even if implied instead of express, strike at the very core of the founder\u27s intent to balance military power within the national government. The military should be viewed as a national agency rather than an Executive Agency, with responsibilities to both the Executive and Legislative Branches, including providing clear and complete information to Congress. This article discusses the unique nature of the military and why it should not be considered an Executive Agency. Through historical constitutional analysis, the article argues that for Congress to perform its necessary and proper role, it must be fully informed on military issues within its area of competence and responsibility. The article then suggests the Congress is not currently receiving complete military information and proposes several methods to remedy this critical deficit

The Political Balance of Power over the Military: Rethinking the Relationship between the Armed Forces, the President, and Congress

Recent events related to the planning and execution of the war in Iraq, most notably the perceived 2003 firing of then Army Chief of Staff Eric Shinseki, have raised concerns over the effect of Executive Branch dominance of the military and how that dominance impacts the ability of Congress to obtain timely and important information. Such actions, perceived to discourage members of the military from providing candid views to Congress when they differ with the Administration, even if implied instead of express, strike at the very core of the founder\u27s intent to balance military power within the national government. The military should be viewed as a national agency rather than an Executive Agency, with responsibilities to both the Executive and Legislative Branches, including providing clear and complete information to Congress. This article discusses the unique nature of the military and why it should not be considered an Executive Agency. Through historical constitutional analysis, the article argues that for Congress to perform its necessary and proper role, it must be fully informed on military issues within its area of competence and responsibility. The article then suggests the Congress is not currently receiving complete military information and proposes several methods to remedy this critical deficit

Transnational Armed Conflict: A “Principled” Approach to the Regulation of Counter-Terror Combat Operations

Transnational armed conflicts have become a reality. The increasing sophistication of terrorist organizations, their increasingly transnational nature, and their development of military strike capabilities, push and will continue to push States to resort to combat power as a means to defend against this threat. Relying on the factual fiction that the acts of such terrorists must be attributable to the States from which they launch their operations, or on the legal fiction that the use of military combat power to respond to such threats is in reality just extraterritorial law enforcement, fails to acknowledge the essential nature of such operations. Because these operations invoke the authority of the LOAC, they should and must be treated as armed conflicts. LOAC principles must be identified and must be broad enough to provide the authority necessary to bring the transnational enemy to submission while ensuring that that authority does not override fundamental humanitarian protections for victims of war: This Article proposes three essential pillars of this regulatory foundation: military necessity, targeting (object/distinction and proportionality), and humane treatment. These principles provide the balance between authority and obligation that is so essential for the effective and disciplined application of combat power Like the treatment of internal armed conflict, these pillars can form a foundation for a more comprehensive treatment of regulatory analysis, encompassing other issues such as command responsibility, criminal liability, access to judicial review, perfidy and treachery, and medical obligations

Transnational Armed Conflict: A “Principled” Approach to the Regulation of Counter-Terror Combat Operations

Transnational armed conflicts have become a reality. The increasing sophistication of terrorist organizations, their increasingly transnational nature, and their development of military strike capabilities, push and will continue to push States to resort to combat power as a means to defend against this threat. Relying on the factual fiction that the acts of such terrorists must be attributable to the States from which they launch their operations, or on the legal fiction that the use of military combat power to respond to such threats is in reality just extraterritorial law enforcement, fails to acknowledge the essential nature of such operations. Because these operations invoke the authority of the LOAC, they should and must be treated as armed conflicts. LOAC principles must be identified and must be broad enough to provide the authority necessary to bring the transnational enemy to submission while ensuring that that authority does not override fundamental humanitarian protections for victims of war: This Article proposes three essential pillars of this regulatory foundation: military necessity, targeting (object/distinction and proportionality), and humane treatment. These principles provide the balance between authority and obligation that is so essential for the effective and disciplined application of combat power Like the treatment of internal armed conflict, these pillars can form a foundation for a more comprehensive treatment of regulatory analysis, encompassing other issues such as command responsibility, criminal liability, access to judicial review, perfidy and treachery, and medical obligations

National Security Law and the Constitution

This new casebook provides a comprehensive examination and analysis of the inherent tension between the Constitution and select national security policies, and explores the multiple dimensions of that conflict. Specifically, this first edition explores key points where constitutional law directs or restricts the development of national security policy, its implementation, and oversight. Each chapter focuses on critically important precedents, offering targeted questions following each case to assist students in identifying key concepts to draw from the primary sources. Offering students a comprehensive yet focused treatment of key national security law concepts, National Security Law and the Constitution is well suited for a course that is as much an advanced “as applied” constitutional law course as it is a national security law course, as well as for use in advanced international relations and national security policy courses. The text offers students a comprehensive yet focused treatment of key national security law concepts. Each chapter focuses on critically important precedents, offering targeted questions following each case to assist students in identifying key concepts to draw from the primary sources. The chapters also use text boxes to illustrate key principles with historical events, and to highlight important issues, rules, and principles closely related to the primary sources. Text is divided into five parts: The Constitutional Framework, War Powers and Military Force, Crime and National Security, Information and National Security, and Other National Security Responseshttps://scholarship.law.nd.edu/law_books/1310/thumbnail.jp

National Security Law and the Constitution

This new casebook provides a comprehensive examination and analysis of the inherent tension between the Constitution and select national security policies, and explores the multiple dimensions of that conflict. Specifically, this first edition explores key points where constitutional law directs or restricts the development of national security policy, its implementation, and oversight. Each chapter focuses on critically important precedents, offering targeted questions following each case to assist students in identifying key concepts to draw from the primary sources. Offering students a comprehensive yet focused treatment of key national security law concepts, National Security Law and the Constitution is well suited for a course that is as much an advanced “as applied” constitutional law course as it is a national security law course, as well as for use in advanced international relations and national security policy courses. The text offers students a comprehensive yet focused treatment of key national security law concepts. Each chapter focuses on critically important precedents, offering targeted questions following each case to assist students in identifying key concepts to draw from the primary sources. The chapters also use text boxes to illustrate key principles with historical events, and to highlight important issues, rules, and principles closely related to the primary sources. Text is divided into five parts: The Constitutional Framework, War Powers and Military Force, Crime and National Security, Information and National Security, and Other National Security Responseshttps://scholarship.law.nd.edu/law_books/1310/thumbnail.jp

Understanding the Distinct Function of the Combatant Status Review Tribunals: A Response to Blocher

This article addresses the limited and distinct function of the Combatant Status Review Tribunal\u27s established by the Department of Defense to review enemy combatant designations. It explains how the predicate legal determinations made by the United States with regard to the conflict in Afghanistan and the conflict with al Qaeda prevent these tribunals from considering whether individuals captured by the United States qualify as prisoners of war. This does not, however, render the function of these review tribunals illegitimate