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I rr ,I Mifitary I Law xeview AMERICAN MILITARY LAW IN THE LIGHT OF THE FIRST MUTINY ACT'S TRICENTENNIAL Colonel Frederick Bernays Wiener, AUS (Retired) THE SIXTH ANNUAL WALDEMAR A. SOLF LECTURE IN INTERNATIONAL LAW. TERRORISM, THE LAW, AND THE NATIONAL DEFENSE Abraham D. Sofaer THE CULTURE OF CHANGE IN MILITARY LAW Eugene R. Fidel1 ANDREW JACKSON, MARTIAL LAW, CMLIAN CONTROL OF THE MILITARY, AND AMERICAN POLITICS: AN INTRIGUING AMALGAM Jonathan Lurie INSTRUCI'IONS AND ADVOCACY Major Michael D. Warren and Lieutenant Colonel W. Gary Jewel1 Volume 126 Fall 1989 Pamphlet HEADQUARTERS DEPARTMENT OF THE ARMY NO. 27-100-126 Washington, D.C., Fall 1989 MILITARY LAW REVIEW-VOL. 126 The Military Law Review has been published quarterly at The Judge Advocate General’s School, US. Army, Charlottesville, Vir- ginia, since 1958. The Review provides a forum for those interested in military law to share the products of their experience and research and is designed for use by military attorneys in connection with their official duties. Writings offered for publication should be of direct concern and import in this area of scholarship, and preference will be given to those writings having lasting value as reference material for the military lawyer. The Review encourages frank discussion of relevant legislative, administrative, and judicial developments. EDITORIAL STAFF MAJOR ALAN D. CHUTE,Editor MS. EVA F. SKINNER, Editorial Assistant SUBSCRIFWONS: Private subscriptions may be purchased from the Superintendent of Documents, United States Government Printing Office, Washington, D.C. 20402. Publication exchange subscriptions are available to law schools and other organizations that publish legal periodicals. Editors or publishers of such periodicals should address inquiries to the Editor of the Review. Inquiries concerning subscriptions for active Army legal offices, other Federal agencies, and JAGC officers in the ARNGUS not on ac- tive duty should be addressed to the Editor of the Review. The editorial staff uses address tapes furnished by the U.S. Army Reserve Personnel Center to send the Review to JAGC officers in the USAR; Reserve judge advocates should promptly inform the Reserve Per- sonnel Center of address changes. Judge advocates of other military departments should request distribution from their service’s publica- tion channels. CITATION: This issue of the Review may be cited as 126 Mil. L. Rev. (number of page) (1989). Each quarterly issue is a complete, separate- ly numbered volume. i POSTAL INFORMATION: The Military Law Review (ISSN 0026- 4040) is published quarterly at The Judge Advocate General’s School, U.S. Army, Charlottesville, Virginia 22903-1781. Second-class postage paid at Charlottesville, Virginia and additional mailing offices. POSTMASTER: Send address changes to Military Law Review, The Judge Advocate General’sSchool, U. S. Army, Charlottesville, Virginia 22903-1781. INDEXING: The primary Military Law Review indices are volume 91 (winter 1981) and volume 81 (summer 1978). Volume 81 included all writings in volumes 1through 80, and replaced all previous Review indices. Volume 91 included writings in volumes 75 through 90 (ex- cluding Volume Sl), and replaced the volume indices in volumes 82 through 90. Volume indices appear in volumes 92 through 95, and were replaced by a cumulative index in volume 96. A cumulative index for volumes 97-101 appears in volume 101, and a cumulative index for volumes 102-111 appears in volume 111. Volume 121 con- tains a cumulative index for volumes 112-121. Military Law Review articles are also indexed in A Bibliography of Contents: Political Science and Government; Legal Contents (C.C.L.l?); Index to Legal Periodicals; Monthly Catalogue of United States Government Publications; Index to US. Govmment Periodi- cals; Legal Rescvurces Index; three computerized data bases, the Pub- lic Affairs Information Service, The Social Science Citation Index, and LEXIS; and other indexing services. Issues of the Military Law Review are reproduced on microfiche in Current US. Government Periodicals on Microfiche,by Infordata International Inc., Suite 4602, 175 East Delaware Place, Chicago, Illinois 60611. ii MILITARY LAW REVIEW TABLE OF CONTENTS Title Page Thesis Topics of the 37th Judge Advocate Officer Graduate Course ................................. V American Military Law in the Light of the First Mutiny Act's Tricentennial Colonel Frederick Bernays Wiener, AUS (Retired) 1 The Sixth Annual Waldemar A. Solf Lecture in International Law: Terrorism, the Law, and the National Defense Abraham D. Sofaer ............................... 89 The Culture of Change in Military Law Eugene R. Fidel1 ................................. 125 Andrew Jackson, Martial Law, Civilian Control of the Military, and American Politics: An Intriguing Amalgam Jonathan Lurie .................................. 133 Instructions and Advocacy Major Michael D. Warren and Lieutenant Colonel W. Gary Jewel1 ................. 147 iii SUBMISSION OF WRITINGS: Articles, comments, recent development notes, and book reviews should be submitted typed in duplicate, double-spaced, to the Editor, Military Law Reviau,The Judge Advocate General’s School, US.Army, Charlottesville, Virginia 22903-1781 (hereinafter TJAGSA). Authors should also submit a 5 ?h inch com- puter diskette containing their articles in an IBM-compatible format. Footnotes also must be typed double-spaced and should appear as a separate ap- pendix at the end of the text. Footnotes should be numbered consecutively from the beginning to end of a writing not chapter by chapter. Citations should conform to the Uniform System of Citation (14th ed. 1986), copyrighted by the Columbia, Har- vard, and University of Pennsylvania Law Reviews and the Yale Law Journal, and to Military Citation (TJAGSA 4th ed. 1988) (available through the Defense Technical Information Center, ordering number AD B124193). Masculine pronouns appearing in the text will refer to both genders unless the context indicates another use. Typescripts should include biographical data concerning the author or authors. This data should consist of grade or other title, present and immediate past positions or duty assignments, all degrees, with names of granting schools and years received, bar admissions, and previous publications. If the article was a speech or was prepared in partial fulfilment of degree requirements, the author should include date and place of delivery of the speech or the source of the degree. EDITORIAL REVIEW: The Editorial Board of the Military Law Review consists of the Deputy Commandant of The Judge Advocate General’s School; the Director, Academic Department; the Director, Developments, Doctrine, and Literature Depart- ment; and the Editor of the Review. They are assisted by instructors from the teaching divisions of the School’s Academic Department. The Board submits its recommenda- tions to the Commandant, TJAGSA, who has final approval authority for writings published in the Review. The Military Law Review does not purport to promulgate Department of the Army policy or to be in any sense directory. The opinions and con- clusions reflected in each writing are those of the author and do not necessarily reflect the views of The Judge Advocate General or any governmental agency. The Board will evaluate all material submitted for publication. In determining whether to publish an article, note, or book review, the Board will consider the item’s substantive accuracy, comprehensiveness, organization, clarity, timeliness, originali- ty, and value to the military legal community. There is no minimum or maximum length requirement. When a writing is accepted for publication, a copy of the edited manuscript will generally be provided to the author for prepublication approval. Minor alterations may be made in subsequent stages of the publication process without the approval of the author. Because of contract limitations, neither galley proofs nor page proofs are provided to authors. Reprints of published writings are not available. Authors receive complimentary copies of the issues in which their writings appear. Additional copies are usually available in limited quantities. They may be requested from the Editor of the Review. BACK ISSUES: Copies of recent back issues are available to Army legal offices in limited quantities from the Editor of the Review. Bound copies are not available and subscribers should make their own arrangements for binding if desired. REPRINT PERMISSION: Contact the Editor, Military Law Review, The Judge Ad- vocate General’s School, U.S. Army, Charlottesville, Virginia 22903-1781. iv THESIS TOPICS OF THE 37TH JUDGE ADVOCATE OFFICER GRADUATE COURSE Nine students from the 37th Judge Advocate Officer Graduate Course, which graduated in May 1989, participated in the Thesis Pro- gram. The Thesis Program is an optional part of the LL.M. cur- riculum. It provides students an opportunity to exercise and to im- prove analytical, research, and writing skills and, equally important, to produce publishable articles that will contribute materially to the military legal community. All graduate course theses, including those of the 37th Graduate Course, are available for reading in the library of The Judge Advocate General’s School. They are excellent research sources. In addition, many are published in the Military Law Mew. The following is a listing, by author and title, of the theses of the 37th Judge Advocate Officer Graduate Course: Major David A. Anderson, Spying in Violation of Article
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