Declared and Undeclared Wars
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War and the Constitutional Text John C
War and the Constitutional Text John C. Yoo∗ In a series of articles, I have criticized the view that the original under- standing of the Constitution requires that Congress provide its authorization before the United States can engage in military hostilities.1 This “pro- Congress” position ignores the constitutional text and structure, errs in in- terpreting the ratification history of the Constitution, and cannot account for the practice of the three branches of government. Instead of the rigid proc- ess advocated by scholars such as Louis Henkin, John Hart Ely, Louis Fisher, Michael Glennon, and Harold Koh,2 I have argued that the Constitu- tion creates a flexible system of war powers. That system provides the president with significant initiative as commander-in-chief, while reserving to Congress ample authority to check executive policy through its power of the purse. In this scheme, the Declare War Clause confers on Congress a ju- ridical power, one that both defines the state of international legal relations ∗ Professor of Law, University of California at Berkeley School of Law (Boalt Hall) (on leave); Deputy Assistant Attorney General, Office of Legal Counsel, United States Department of Justice. The views expressed here are those of the author alone and do not represent the views of the Department of Justice. I express my deep appreciation for the advice and assistance of James C. Ho in preparing this response. Robert Delahunty, Jack Goldsmith, and Sai Prakash provided helpful comments on the draft. 1 See John C. Yoo, Kosovo, War Powers, and the Multilateral Future, 148 U Pa L Rev 1673, 1686–1704 (2000) (discussing the original understanding of war powers in the context of the Kosovo conflict); John C. -
Undeclared War: Unmanned Drones, Human Rights and Collective Security
Undeclared War: unmanned drones, human rights and collective security Susan Carolyn Breau, University of Reading/Mark Olssen, University of Surrey Drones constitute, as Barbara Ehrenreich notes, in her ‘Foreword’ to Medea Benjamin’s Drone Warfare: Killing by remote control, the “ultimate action-at-a-distance weapons, allowing the aggressor to destroy targets in Pakistan or Afghanistan while ‘hiding’ thousands of miles away in Nevada” (Ehrenreich, 2013, p. vii). Yet, as Ehrenreich continues, “it is hard to even claim that their primary use is ‘military’ in any traditional sense. Drones have made possible a programme of targeted assassinations that are justified by the US ‘war on terror’, but otherwise in defiance of both international and US law” (p. viii). She notes how Benjamin in her book documents impressively how “it is the CIA, not the Pentagon, that operates most drone strikes in Western Asia, with no accountability whatsoever. Designed targets…have been condemned without evidence or trial – at the will apparently, of the White House. And those who operate the drones do so with complete impunity for the deaths of any civilians who end up as collateral damage.” (p. viii) Although the technical expertise for producing drones was developed as early as the WWI, and although unmanned aerial vehicles were used for gathering intelligence and for reconnaissance during WWII and during the Vietnam and later Balkan wars, their adaptation to becoming lethal military vehicles for the purposes of attacking and destroying specified targets has taken place more recently. Although Abraham Karem assisted the Israeli’s in developing unmanned robots in the 1970s, and built the first Predator drone in his garage in Southern California in the early 1980s 1, the first official use in military conflict only occurred since 1999 with the NATO Kosovo intervention where unmanned robotic aircraft were adapted to carry missiles “transforming them from spy planes into killer drones” (Benjamin, p. -
To Declare War
TO DECLARE WAR J. GREGORY SIDAK* INTRODUCTION ................................................ 29 I. DID AMERICA'S ENTRY INTO THE PERSIAN GULF WAR REQUIRE A PRIOR DECLARATION OF WAR?................ 36 A. Overture to War: Are the PoliticalBranches Willing to Say Ex Ante What a "War" Is? ...................... 37 B. Is It a Political Question for the Judiciary to Issue a DeclaratoryJudgment Saying Ex Ante What Is or Will Constitute a "War"? .................................. 39 C. The Iraq Resolution of January 12, 1991 .............. 43 D. Why Do We No Longer Declare War When We Wage War? ................................................ 48 E. The President's War-Making Duties as Commander in Chief ................................................ 50 F. The Specious Dichotomy Between "General War" and Undeclared "'Limited War"........................... 56 II. THE COASE THEOREM AND THE DECLARATION" OF WAR: POLITICAL ACCOUNTABILITY AS A NORMATIVE PRINCIPLE FOR IMPLEMENTING THE SEPARATION OF POWERS ........ 63 A. Coasean Trespasses and Bargains Between the Branches of Government ....................................... 64 B. PoliticalAccountability, Agency Costs, and War ........ 66 C. American Sovereignty and the United Nations .......... 71 III. THE ACCOUNTABLE FORMALISM OF DECLARING WAR: LESSONS FROM THE DECLARATION OF WAR ON JAPAN .... 73 A. Provocation and Culpability: Is America Initiating War or Is Pre-Existing War "Thrust Upon" It? ............. 75 B. The Objectives of War: The President'sLegislative Role as Recommender of War .............................. 79 * A.B. 1977, A.M., J.D. 1981, Stanford University. Member of the California and District of Columbia Bars. In writing this Article, I have benefitted from the comments and protests of Gary B. Born, L. Gordon Crovitz, John Hart Ely, Daniel A. Farber, John Ferejohn, Michael J. Glennon, Stanley Hauerwas, Geoffrey P. -
Title 'Expanding the History of the Just
Title ‘Expanding the History of the Just War: The Ethics of War in Ancient Egypt.’ Abstract This article expands our understanding of the historical development of just war thought by offering the first detailed analysis of the ethics of war in ancient Egypt. It revises the standard history of the just war tradition by demonstrating that just war thought developed beyond the boundaries of Europe and existed many centuries earlier than the advent of Christianity or even the emergence of Greco-Roman thought on the relationship between war and justice. It also suggests that the creation of a prepotent ius ad bellum doctrine in ancient Egypt, based on universal and absolutist claims to justice, hindered the development of ius in bello norms in Egyptian warfare. It is posited that this development prefigures similar developments in certain later Western and Near Eastern doctrines of just war and holy war. Acknowledgements My thanks to Anthony Lang, Jr. and Cian O’Driscoll for their insightful and instructive comments on an early draft of this article. My thanks also to the three anonymous reviewers and the editorial team at ISQ for their detailed feedback in preparing the article for publication. A version of this article was presented at the Stockholm Centre for the Ethics of War and Peace (June 2016), and I express my gratitude to all the participants for their feedback. James Turner Johnson (1981; 1984; 1999; 2011) has long stressed the importance of a historical understanding of the just war tradition. An increasing body of work draws our attention to the pre-Christian origins of just war thought.1 Nonetheless, scholars and politicians continue to overdraw the association between Christian political theology and the advent of just war thought (O’Driscoll 2015, 1). -
Article 5 of the North Atlantic Treaty: Past, Present, and Uncertain Future
NOTES ARTICLE 5 OF THE NORTH ATLANTIC TREATY: PAST, PRESENT, AND UNCERTAIN FUTURE Broderick C. Grady* TABLE OF CONTENTS I. INTRODUCTION ......................................... 169 II. THE NORTH ATLANTIC TREATY: ITS ORIGINS AND PRECEDENTS... 171 A. The Atlantic Charter .................................. 171 B. The Brussels Treaty .................................. 173 C. The Rio Pact ........................................ 174 D. The Formationof the North Atlantic Treaty ................ 175 MI. ARTICLE 5: CONTEXT AND MEANING ........................ 177 IV. THE LIMITATIONS ON ARTICLE 5: ARTICLE 6 AND THE UN CHARTER .......................... 180 V. ARTICLE 5: THE PRESENT: SEPTEMBER 11 AND THE INVOCATION OF ARTICLE 5 ............................................. 185 A. Problems with the Invocation After 9/11 .................. 185 B. Difficulties in Invoking Article 5 Against TerroristGroups ..................................... 187 C. Did Article 5 Need to Be Invoked at All? .................. 188 * J.D. 2003, University of Georgia School of Law; B.A. 1999, Washington & Lee University. 168 GA. J. INT'L & COMP. L. [Vol. 31:167 VI. THE UNCERTAIN FUTURE OF ARTICLE 5: CONCLUSIONS ......... 193 A. Does the Invocation of Article 5 Have any Value as Legal Precedent? ............................. 193 B. Invoking Article 5 in the Future ......................... 197 20021 ARTICLE 5 OF THE NORTH ATLANTIC TREATY I. INTRODUCTION In the aftermath of the September 11, 2001 terrorist attacks, the United States government acted to combat terrorism and bring those who supported the perpetrators of the attacks to justice.' President George W. Bush created the position of Director of Homeland Security, naming former Pennsylvania Governor Tom Ridge to the post;' Congress passed the USA PATRIOT Act, containing several anti-terrorism provisions;3 and throughout the country, officials took steps to tighten security at likely targets, including airports, sporting events, and government buildings." The United States was not alone, however, in responding to the tragedy of September 11. -
Civilians in Cyberwarfare: Conscripts
Civilians in Cyberwarfare: Conscripts Susan W. Brenner* with Leo L. Clarke** ABSTRACT Civilian-owned and -operated entities will almost certainly be a target in cyberwarfare because cyberattackers are likely to be more focused on undermining the viability of the targeted state than on invading its territory. Cyberattackers will probably target military computer systems, at least to some extent, but in a departure from traditional warfare, they will also target companies that operate aspects of the victim nation’s infrastructure. Cyberwarfare, in other words, will penetrate the territorial borders of the attacked state and target high-value civilian businesses. Nation-states will therefore need to integrate the civilian employees of these (and perhaps other) companies into their cyberwarfare response structures if a state is to be able to respond effectively to cyberattacks. While many companies may voluntarily elect to participate in such an effort, others may decline to do so, which creates a need, in effect, to conscript companies for this purpose. This Article explores how the U.S. government can go about compelling civilian cooperation in cyberwarfare without violating constitutional guarantees and limitations on the power of the Legislature and the Executive. * NCR Distinguished Professor of Law and Technology, University of Dayton School of Law. ** Associate, Drew, Cooper & Anding, P.C., Grand Rapids, Michigan. 1011 1012 Vanderbilt Journal of Transnational Law [Vol. 43:1011 TABLE OF CONTENTS I. INTRODUCTION ............................................................. -
America's Undeclared Naval War
America's Undeclared Naval War Between September 1939 and December 1941, the United States moved from neutral to active belligerent in an undeclared naval war against Nazi Germany. During those early years the British could well have lost the Battle of the Atlantic. The undeclared war was the difference that kept Britain in the war and gave the United States time to prepare for total war. With America’s isolationism, disillusionment from its World War I experience, pacifism, and tradition of avoiding European problems, President Franklin D. Roosevelt moved cautiously to aid Britain. Historian C.L. Sulzberger wrote that the undeclared war “came about in degrees.” For Roosevelt, it was more than a policy. It was a conviction to halt an evil and a threat to civilization. As commander in chief of the U.S. armed forces, Roosevelt ordered the U.S. Navy from neutrality to undeclared war. It was a slow process as Roosevelt walked a tightrope between public opinion, the Constitution, and a declaration of war. By the fall of 1941, the U.S. Navy and the British Royal Navy were operating together as wartime naval partners. So close were their operations that as early as autumn 1939, the British 1 | P a g e Ambassador to the United States, Lord Lothian, termed it a “present unwritten and unnamed naval alliance.” The United States Navy called it an “informal arrangement.” Regardless of what America’s actions were called, the fact is the power of the United States influenced the course of the Atlantic war in 1941. The undeclared war was most intense between September and December 1941, but its origins reached back more than two years and sprang from the mind of one man and one man only—Franklin Roosevelt. -
The Massachusetts Antiwar Bill, by Anthony A
Northwestern University School of Law Northwestern University School of Law Scholarly Commons Faculty Working Papers 1970 The aM ssachusetts Antiwar Bill Anthony D'Amato Northwestern University School of Law, [email protected] Repository Citation D'Amato, Anthony, "The asM sachusetts Antiwar Bill" (1970). Faculty Working Papers. Paper 126. http://scholarlycommons.law.northwestern.edu/facultyworkingpapers/126 This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Faculty Working Papers by an authorized administrator of Northwestern University School of Law Scholarly Commons. The Massachusetts Antiwar Bill, by Anthony A. D'Amato,* 42 New York State Bar Journal 639-649 (1970) Abstract: The Massachusetts Antiwar bill provides that no inhabitant of Massachusetts inducted into or serving in the armed forces “shall be required to serve” abroad in an armed hostility that has not been declared a war by Congress under Art. I, Sect. 8 of the United States Constitution. One could hardly imagine a more fundamental constitutional doubt arising in the mind of the American public than that of the legality of a major war. The purpose of the Massachusetts bill is purely and simply to obtain an authoritative judicial test of the constitutionality of an undeclared war. Tags: Massachusetts Antiwar Bill, Vietnam War, Massachusetts v. Laird, U.S. Constitution Article I Section 8, Prize Cases, Standing [pg639]** One of the most singular pieces of legislation in American constitutional history passed both houses of the Massachusetts legislature on April 1st, 1970, and was signed into law, effective immediately, on the following day by Governor Francis W. -
Law of War Handbook 2005
LAW OF WAR HANDBOOK (2005) MAJ Keith E. Puls Editor 'Contributing Authors Maj Derek Grimes, USAF Lt Col Thomas Hamilton, USMC MAJ Eric Jensen LCDR William O'Brien, USN MAJ Keith Puls NIAJ Randolph Swansiger LTC Daria Wollschlaeger All of the faculty who have served before us and contributed to the literature in the field of operational law. Technical Support CDR Brian J. Bill, USN Ms. Janice D. Prince, Secretary JA 423 International and Operational Law Department The Judge Advocate General's Legal Center and School Charlottesville, Virginia 22903 PREFACE The Law of War Handbook should be a start point for Judge Advocates looking for information on the Law of War. It is the second volume of a three volume set and is to be used in conjunction with the Operational Law Handbook (JA422) and the Documentary Supplement (JA424). The Operational Law Handbook covers the myriad of non-Law of War issues a deployed Judge Advocate may face and the Documentary Supplement reproduces many of the primary source documents referred to in either of the other two volumes. The Law of War Handbook is not a substitute for official references. Like operational law itself, the Handbook is a focused collection of diverse legal and practical information. The handbook is not intended to provide "the school solution" to a particular problem, but to help Judge Advocates recognize, analyze, and resolve the problems they will encounter when dealing with the Law of War. The Handbook was designed and written for the Judge Advocates practicing the Law of War. This body of law is known by several names including the Law of War, the Law of Armed Conflict and International Humanitarian Law. -
Name: 00001205
UNITED NATIONS A General Assembly Distr. GENERAL A/38/651 8 December 1983 ORIGINAL: ENGLISH 'OA/ Thirty-eighth session Agenda item 29 THE SITUATION IN AFGHANISTAN AND ITS IMPLICATIONS FOR INTERNATIONAL PEACE AND SECURITY Letter dated 7 December 1983 from the Permanent Representative of Afghanistan to the United Nations addressed to the President of the General Assembly I have the honour to refer to my statement of 23 November 1983 1/ in exercise of the right of reply of my delegation, in the course of which I requested Your Excellency to issue as a document of the General Assembly the full text of my statement which I could not conclude owing to the shortage of time. I have further the honour to submit to you the full text of that statement with the request for its distribution as a document of the General Assembly under agenda item 29. (Signed) M. Farid ZARIF Ambassador Permanent Representative 1/ A/38/PV.69, p. 52. 83-34878 1056u (E) /.. A/38/651 English ANNEX Page 2 Statement by the Permanent Representative of Afghanistan In his statement yesterday in this Assembly, the Head of the Pakistan delegation referred to my Government as a regime which was installed and is being sustained by alien forces. His falacious version of the reality, notwithstanding, we regret the fact that not all delegations abide by the elementary rules of ethics in this Assembly or in their inter-state relations. "Te therefore abstain from calling his government as the Islamabad military regime which is being sustained by bayonets and bullets. -
The Changkufeng and Nomonhan Incidents – the Undeclared Border War and Its Impact on World War Ii
University of Texas at El Paso DigitalCommons@UTEP Open Access Theses & Dissertations 2014-01-01 The hC angkufeng And Nomonhan Incidents - The Undeclared Border War And Its Impact on World War II Tobias Block University of Texas at El Paso, [email protected] Follow this and additional works at: https://digitalcommons.utep.edu/open_etd Part of the Asian History Commons, Asian Studies Commons, Military History Commons, Slavic Languages and Societies Commons, and the Soviet and Post-Soviet Studies Commons Recommended Citation Block, Tobias, "The hC angkufeng And Nomonhan Incidents - The ndeU clared Border War And Its Impact on World War II" (2014). Open Access Theses & Dissertations. 1588. https://digitalcommons.utep.edu/open_etd/1588 This is brought to you for free and open access by DigitalCommons@UTEP. It has been accepted for inclusion in Open Access Theses & Dissertations by an authorized administrator of DigitalCommons@UTEP. For more information, please contact [email protected]. THE CHANGKUFENG AND NOMONHAN INCIDENTS – THE UNDECLARED BORDER WAR AND ITS IMPACT ON WORLD WAR II TOBIAS BLOCK DEPARTMENT OF HISTORY APPROVED: __________________________________________ Joshua Fan, Ph.D., Chair __________________________________________ Paul Edison, Ph.D. __________________________________________ Jose Villalobos, Ph.D. __________________________________ Bess Sirmon-Taylor, Ph.D. Interim Dean of the Graduate School THE CHANGKUFENG AND NOMONHAN INCIDENTS - THE UNDECLARED BORDER WAR AND ITS IMPACT ON WORLD WAR II by Tobias Block, BA Thesis Presented to the Faculty of the Graduate School of The University of Texas at El Paso in Partial Fulfillment of the Requirements for the Degree of MASTER OF ARTS Department Of HISTORY THE UNIVERSITY OF TEXAS OF EL PASO May 2014 Table of Contents Table of Contents……………………………………………………………………………………………………………………. -
Cyber War and Terrorism: Towards a Common Language to Promote Insurability
Cyber War and Terrorism: Towards a common language to promote insurability July 2020 Cyber War and Terrorism: Towards a common language to promote insurability Rachel Anne Carter, Director Cyber, The Geneva Association Julian Enoizi, CEO, Pool Reinsurance Company Limited, and Secretariat, International Forum of Terrorism Risk (Re)Insurance Pools Cyber War and Terrorism: Towards a common language to promote insurability 1 The Geneva Association The Geneva Association was created in 1973 and is the only global association of insurance companies; our members are insurance and reinsurance Chief Executive Officers (CEOs). Based on rigorous research conducted in collaboration with our members, academic institutions and multilateral organisations, our mission is to identify and investigate key trends that are likely to shape or impact the insurance industry in the future, highlighting what is at stake for the industry; develop recommendations for the industry and for policymakers; provide a platform to our members, policymakers, academics, multilateral and non-governmental organisations to discuss these trends and recommendations; reach out to global opinion leaders and influential organisations to highlight the positive contributions of insurance to better understanding risks and to building resilient and prosperous economies and societies, and thus a more sustainable world. International Forum of Terrorism Risk (Re)Insurance Pools The International Forum of Terrorism Risk (Re)Insurance Pools (IFTRIP) is a collaboration between global terrorism (re)insurance pools. It was formally ratified at the National Terrorism Reinsurance Pools Congress organised by the Australian Reinsurance Pool Corporation (ARPC) in Canberra in October 2016. The organisation was founded with the goal of promoting initiatives for closer international collaboration and sharing expertise and experience to combat the threat of potential major economic loss resulting from terrorism.