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Headquarters, Department of the Army Headquarters, Department of the Army Department of the Army Pamphlet 27-50-410 Special Joint Service Edition July 2007 Articles Foreword Time to Stand Up and Be Counted: The Need for the United Nations to Control International Terrorism Major Karin G. Tackaberry, U.S. Army The Influence of International Law on the Military Commissions Act 2006: The Glass Half Full or Half Empty? Colonel Larry D. Youngner, U.S. Air Force, Squadron Leader Patrick Keane, Royal Australian Air Force, and Squadron Leader Andrew McKendrick, Royal Air Force Special Operations Commando Raids and Enemy Hors de Combat Commander Gregory Raymond Bart, U.S. Navy Developing the Rule of Law in Afghanistan: The Need for a New Strategic Paradigm Lieutenant Vasilios Tasikas, U.S. Coast Guard Tactical Level PSYOP and MILDEC Information Operations: How to Smartly and Lawfully Prime the Battlefield Major Joshua E. Kastenberg, U.S. Air Force The Detention and Prosecution of Insurgents and Other Non-Traditional Combatants—A Look at the Task Force 134 Process and the Future of Detainee Prosecutions Captain W. James Annexstad, U.S. Air Force Engaging Civilian-Belligerents Leads to Self-Defense/Protocol I Marriage Commander Albert S. Janin, U.S. Navy CLE News Current Materials of Interest Editor, Captain Alison M. Tulud Assistant Editor, Captain Ann B. Ching Technical Editor, Charles J. Strong The Army Lawyer (ISSN 0364-1287, USPS 490-330) is published monthly interest to military lawyers. Articles should be submitted via electronic by The Judge Advocate General’s Legal Center and School, Charlottesville, mail to [email protected] or on 3 1/2” diskettes to: Editor, Virginia, for the official use of Army lawyers in the performance of their The Army Lawyer, The Judge Advocate General’s Legal Center and legal responsibilities. Individual paid subscriptions to The Army Lawyer are School, U.S. Army, 600 Massie Road, ATTN: ALCS-ADA-P, available for $45.00 each ($63.00 foreign) per year, periodical postage paid at Charlottesville, Virginia 22903-1781. Articles should follow The Charlottesville, Virginia, and additional mailing offices (see subscription form Bluebook, A Uniform System of Citation (18th ed. 2005) and Military on the inside back cover). POSTMASTER: Send any address changes to The Citation (TJAGLCS, 11th ed. 2006). Manuscripts will be returned on Judge Advocate General’s Legal Center and School, 600 Massie Road, specific request. No compensation can be paid for articles. ATTN: ALCS-ADA-P, Charlottesville, Virginia 22903-1781. The opinions expressed by the authors in the articles do not necessarily reflect the view of The Army Lawyer articles are indexed in the Index to Legal Periodicals, The Judge Advocate General or the Department of the Army. Masculine or the Current Law Index, the Legal Resources Index, and the Index to U.S. feminine pronouns appearing in this pamphlet refer to both genders unless the Government Periodicals. The Army Lawyer is also available in the Judge context indicates another use. Advocate General’s Corps electronic reference library and can be accessed on the World Wide Web by registered users at The Editor and Assistant Editor thank the Adjunct Editors for their http://www.jagcnet.army.mil/ArmyLawyer. invaluable assistance. The Board of Adjunct Editors consists of highly qualified Reserve officers selected for their demonstrated academic Address changes for official channels distribution: Provide changes to excellence and legal research and writing skills. Prospective candidates the Editor, The Army Lawyer, The Judge Advocate General’s Legal Center may send Microsoft Word versions of their resumes, detailing relevant and School, 600 Massie Road, ATTN: ALCS-ADA-P, Charlottesville, experience, to the Technical Editor at [email protected] Virginia 22903-1781, telephone 1-800-552-3978 (press 1 and extension 3396) or electronic mail to [email protected]. The Editorial Board of the Military Law Review includes the Chair, Administrative and Civil Law Department; and the Director, Professional Issues may be cited as ARMY LAW., [date], at [page number]. Writing Program. The Editorial Board evaluates all material submitted for publication, the decisions of which are subject to final approval by the Dean, The Judge Advocate General’s School, U.S. Army. The Army Lawyer welcomes articles from all military and civilian authors on topics of Articles Foreword.................................................................................................................................................................. ii Time to Stand Up and Be Counted: The Need for the United Nations to Control International Terrorism Major Karin G. Tackaberry, U.S. Army e............................................................................................................... 1 The Influence of International Law on the Military Commissions Act 2006: The Glass Half Full or Half Empty? Colonel Larry D. Youngner, U.S. Air Force, Squadron Leader Patrick Keane, Royal Australian Air Force, and Squadron Leader Andrew McKendrick, Royal Air Force ................................................................................. 26 Special Operations Commando Raids and Enemy Hors de Combat Commander Gregory Raymond Bart, U.S. Navy.................................................................................................... 33 Developing the Rule of Law in Afghanistan: The Need for a New Strategic Paradigm Lieutenant Vasilios Tasikas, U.S. Coast Guard...................................................................................................... 45 Tactical Level PSYOP and MILDEC Information Operations: How to Smartly and Lawfully Prime the Battlefield Major Joshua E. Kastenberg, U.S. Air Force ........................................................................................................ 61 The Detention and Prosecution of Insurgents and Other Non-Traditional Combatants— A Look at the Task Force 134 Process and the Future of Detainee Prosecutions Captain W. James Annexstad, U.S. Air Force........................................................................................................ 72 Engaging Civilian-Belligerents Leads to Self-Defense/Protocol I Marriage Commander Albert S. Janin, U.S. Navy................................................................................................................. 82 CLE News ............................................................................................................................................................................ 105 Current Materials of Interest ......................................................................................................................................... 116 Individual Paid Subscriptions to The Army Lawyer .......................................................................... Inside Back Cover JULY 2007 • THE ARMY LAWYER • DA PAM 27-50-410 i APRIL 2007 • THE ARMY LAWYER • DA PAM 27-50-407 i Foreword On behalf of The Judge Advocate General’s Legal Center and School, United States Army and our friends at the Judge Advocate General’s School, United States Air Force and the Naval Justice School, we are pleased to present this special joint service edition of The Army Lawyer. It is fitting that this issue focuses on international and operational law topics, as Judge Advocates from all services serve with distinction in operational theaters around the world. The Global War on Terror has continued to highlight the fact that on today’s battlefield, no service fights alone. The United States military is, and must be, a joint team bringing our strengths together to defend our great Nation. The wide range of topics, experiences, and viewpoints expressed in this issue exemplifies the extraordinary value of inter-service coordination. We extend our sincere thanks and appreciation to our colleagues on the staffs of our sister service legal publications, the Air Force Law Review, and the Naval Law Review. -The Editors ii JULY 2007 • THE ARMY LAWYER • DA PAM 27-50-410 Time to Stand Up and Be Counted: The Need for the United Nations to Control International Terrorism Major Karin G. Tackaberry∗ Terrorism is a global menace. It calls for a united, global response. To defeat it, all nations must take counsel together, and act in unison. That is why we have the United Nations.1 I. Introduction Since September 11, the United States and many other nations have been engaged in the Global War on Terrorism.2 The U.S. military has approximately 200,000 Soldiers, Sailors, Airmen, and Marines serving in Iraq and Afghanistan.3 Each service’s Judge Advocate General’s Corps supports the Global War on Terrorism by providing “professional legal support at all echelons of command throughout the range of military operations”4 and within other government agencies such as the Department of State.5 In the Army, this legal support includes advice and services in international law, one of the core legal disciplines.6 Although international law advice generally focuses on conduct in a full spectrum of missions and ensuring adherence to international treaty law and customary international law,7 judge advocates may gain a greater understanding of daily activities in deployed areas by understanding the historical evolution of justifying war and the existing anti-terrorism treaties.8 Since the beginning of civilization, great philosophers and scholars have struggled with the morality of war. In particular, these philosophers formulated guidelines
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