Challenges to civilfian control of the military: A rational choice approach to the war on terror

UCLA Law Review

Volumn 54, Issue 6, 2007, Pages 1815-1845

  Sulmasy, Glenn ^a   Yoo, John ^b,c  

^a U S COAST GUARD ACADEMY   (United States)

^b UNIVERSITY OF CALIFORNIA   (United States)

^c AMERICAN ENTERPRISE INSTITUTE   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34948839486     PISSN: 00415650     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (145)

1. See, e.g., LOUIS FISHER, PRESIDENTIAL WAR POWER (2d ed. 2004); JOHN YOO, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11 (2005 ).
2. See, e.g., ERIC A. POSNER & ADRIAN VERMEULE, TERROR IN THE BALANCE: SECURITY, LIBERTY, AND THE COURTS (2007); GEOFFREY R. STONE, PERILOUS TIMES: FREE SPEECH IN WARTIME FROM THE SEDITION ACT OF 1798 TO THE WAR ON TERRORISM (2004); JOHN YOO, WAR BY OTHER MEANS: AN INSIDER'S ACCOUNT OF THE WAR ON TERROR (2006).
3. See, e.g., ROBERT POWELL, IN THE SHADOW OF POWER: STATES AND STRATEGIES IN INTERNATIONAL POLITICS (1999); MARC TRACHTENBERG, A CONSTRUCTED PEACE: THE MAKING OF THE EUROPEAN SETTLEMENT, 1945-1963 (1999).
4. For exceptions, see, for example, Deborah D. Avant, Military Perspectives and Civilian Control in Post-Cold War Peace Operations, 93 AM. SOC'Y INT'L L. PROC. 346 (1999);
5. Nathan A. Canestaro, Legal and Policy Constraints on the Conduct of Aerial Precision Warfare, 37 VAND. J. TRANSNAT'LL. 431 (2004);
6. Richard H. Kohn, Using the Military at Home: Yesterday, Today and Tomorrow, 4 CHI. J. INT'L L. 165 (2003) (discussing the history and the potential implications of using the military in domestic applications in the War on Terror);
7. Diane H. Mazur, The Bullying of America: A Cautionary Tale About Military Voting and Civil-Military Relations, 4 ELECTION L.J. 105 (2005) (examining the bad state of civilian-military relations through the lens of the 2000 presidential election);
8. Diane H. Mazur, Rehnauist's Vietnam: Constitutional Separatism and the Stealth Advance of Martial Law, 77 IND. L.J. 701, 704 (2002) (finding that judicial review of the military has decreased in the post-Vietnam era, thanks in large part to Chief Justice Rehnquist's jurisprudence).
9. OFFICE OF MGMT. & BUDGET, EXEC. OFFICE OF THE PRESIDENT, BUDGET OF THE UNITED STATES GOVERNMENT, FISCAL YEAR 2008, DEP'T OF DEFENSE 50 (2007), available at http://www.gpoaccess.gov/usbudget/fy08/pdf/budget/defense.pdf.
10. OFFICE OF MGMT. & BUDGET, EXEC. OFFICE OF THE PRESIDENT, BUDGET OF THE UNITED STATES GOVERNMENT, FISCAL YEAR 2008, HISTORICAL TABLES, at tbl.4.2 (2007), available at http://www.gpoaccess.gov/usbudget/fy08/sheets/hist04z2.xls.
11. Id.
12. Id. at tbl.17.1, available at http://www.gpoaccess.gov/ usbudget/fy08/sheets/hist17z1.xls.
13. Id. at tbl.17.5, available at http://www.gpoaccess.gov/ usbudget/fy08/sheets/hist17z5.xls.
14. Id.
15. 5 U.S.C. § 551 (2000). For a recent example, see Massachusetts v. EPA, No. 05-1120 (U.S. Apr. 2, 2007) (addressing the Environmental Protection Agency's (EPA) refusal to regulate greenhouse gases).
16. John Yoojudicial Review and the War on Terrorism, 72 GEO. WASH. L. REV. 427 (2003-2004).
17. Paul D. Eaton, Op-Ed., A Top-Down Review for the Pentagon, N.Y. TIMES, Mar. 19, 2006, at D12 (op-ed by former general, the first major public call by retired military brass for Rumsfeld's resignation);
18. Michael Janofsky, More Calls for Rumsfeld to Leave, N.Y. TIMES, Apr. 3, 2006, at All;
19. Thomas E. Ricks, Rumsfeld Rebuked by Retired Generals: Ex-Iraq Commander Calls for Resignation, WASH. POST, Apr. 13, 2006, at Al.
20. David S. Cloud & Eric Schmitt, More Retired Generals Call for Rumsfeld's Resignation, N.Y. TIMES, Apr. 14, 2006, at A1.
21. Diego Ibarguen et al., Mixed Signs From Iraq - Turks Delay Vote, PHIL. INQUIRER, Feb. 26, 2003, at A3;
22. Vernon Loeb, COST OF WAR REMAINS Unanswered Question, WASH. POST, Mar. 1, 2003, at A13.
23. Eric Schmitt, Threats and Responses: Military Spending; Pentagon Contradicts General on Iraq Occupation Force's Size, N.Y. TIMES, Feb. 28, 2003, at A1.
24. This decision is discussed in YOO, SUPRA note 2, at 18-47.
25. Adam Liptak, U.S. Barred Legal Review of Detentions, Lawyer Says, N.Y. TIMES, May 19, 2004, at A14.
26. Pub. L. No. 109-366, 120 Stat. 2600 (2006).
27. Notice on Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 13, 2001). For a discussion of the constitutional issues involved with the Act, see Jesse Choper & John Yoo, Wartime Process: A Dialogue on Congressional Power to Remove Issues From Federal Courts, 95 CAL. L. REV. (forthcoming 2007).
28. See Testimony on Military Commissions: Hearing Before the S. Comm. on Armed Services, 109th Cong. (July 19, 2006) (statement of Sen. Carl Levin) ("[T]he Committee heard from six Judge Advocates General, both active and retired ... a majority... favor taking the existing rules of courts martial under the UCMJ as the starting point or framework for our consideration of military commissions....");
29. see also John D. Hutson, Editorial, Your Turn, NH: Congress Must Right a Wrong on the Treatment of Detainees, UNION LEADER, Sept. 11, 2006, at A9.
30. 126 S. Ct. 2749 (2006).
31. Geneva Convention Relative to the Treatment of Prisoners of War art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.
32. 126 S. Ct. at 2757. The decision has generated significant debate. See, e.g., Derek Jinks & Neal Kumar Katyal, Disregarding Foreign Relations Law, 116 YALE L.J. 1230 (2007);
33. Julian Ku & John Yoo, Hamdan v. Rumsfeld: The Functional Case for Foreign Affairs Deference to the Executive Branch, 23 CONST. COMMENT. 179 (2006);
34. Eric A Posner & Cass R. Sunstein, Chevronizing Foreign Relations Law, 116 YALE L.J. 1170 (2007).
35. See Kate Zernike, Lawyers and G.O.P. Chiefs Resist Proposal on Tribunal, N.Y. TIMES, Sept. 8, 2006, at Al.
36. Id.
37. Concerning the Supreme Court's Decision in Hamdan v. Rumsfeld: Hearing Before the H. Comm. on Armed Services, 109th Cong. (Sept. 7, 2006) (statement of Steven G. Bradbury, Acting Assistant Att'y Gen. for the Office of Legal Counsel, U.S. Dep't of Justice), available at http://armedservices.house.gov/comdocs/schedules/9-7-06BradburyStatement.pdf.
38. Id. at 7.
39. Id. at 6.
40. See, e.g., Richard H. Kohn, Out of Control: The Crisis in Civil-Military Relations, NAT'L INTEREST, Spring 1994, at 3.
41. Russell F. Weigley, The American Military and the Principle of Civilian Control From McClellan to Powell, J. MIL. HIST., Oct. 2003.
42. Kohn, supra note 30, at 3.
43. Richard H. Kohn, The Erosion of Civilian Control of the Military in the United States Today, NAVAL WAR C. REV., Summer 2002, at 9.
44. Id.
45. Id.
46. Id. at 10.
47. Charles J. Dunlap, Jr., The Origins of the American Military Coup of 2012, PARAMETERS: US ARMY WAR C.Q., Winter 1992-1993, at 2.
48. Kohn, supra note 30, at 3.
49. Weigley, supra note 31, at 28.
50. Colin L. Powell, Editorial, Why Generals Get Nervous, N.Y. TIMES, Oct. 8, 1992, at A35.
51. Kohn, supra note 33, at 17 & n.43.
52. See id. at 19 & n.52.
53. Id. at 11.
54. Id. at 13.
55. Id. at 14.
56. Douglas MacArthur, General MacArthur's Address Before the Massachusetts Legislature (July 25, 1951), in Extension of Remarks of Hon. Clarence J. Brown of Ohio, In the House of Representatives, 82d Congress, 1st Sess., July 26, 1951, 97 CONG. REC. APP'X, Part 14 (July 12, 1951 to Sept. 17, 1951), at A4721, A4722.
57. See sources cited supra notes 4, 31-33.
58. SAMUEL P. HUNTINGTON, THE SOLDIER AND THE STATE: THE THEORY AND POLITICS OF CIVIL-MILITARY RELATIONS (1957).
59. Id. at 2.
60. Id. at 83.
61. Id.
62. Id.
63. Id. at 464.
64. MICHAEL C. DESCH, CIVILIAN CONTROL OF THE MILITARY: THE CHANGING SECURITY ENVIRONMENT 22-35 (1999).
65. Id. at 22.
66. See, e.g., Matthew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L REV. 431, 433-34 (1989).
67. For a recent application in a related context, see Anne Joseph O'Connell, The Architecture of Smart Intelligence: Structuring and Overseeing Agencies in the Post-9111 World, 94 CAL. L. REV. 1655, 1702 (2006).
68. O'Connell, supra note 56, at 1702.
69. PETER D. FEAVER, ARMED SERVANTS: AGENCY, OVERSIGHT, AND CIVIL-MILITARY RELATIONS (2003).
70. See id. at 58-68.
71. Id. at 67.
72. DEBORAH D. AVANT, POLITICAL INSTITUTIONS AND MILITARY CHANGE: LESSONS FROM PERIPHERAL WARS 21-48 (1994).
73. These tools are identified in FEAVER, supra note 58, at 75-87.
74. See generally Matthew D. McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms, 28 AM. J. POL. SCI. 165 (1984).
75. Id.
76. McCubbins et al., supra note 56, at 444.
77. These sanctions are fully explored in FEAVER, supra note 58, at 87-95.
78. Id. at 102-17.
79. HUNTINGTON, supra note 48, at 464.
80. See generally YOO, supra note 1.
81. McCubbins et al., supra note 56, at 439.
82. AVANT, supra note 61, at 21-48.
83. See supra notes 25-29 and accompanying text.
84. Pub. L. No. 109-366, 120 Stat. 2600 (2006).
85. See Choper & Yoo, supra note 20 (discussing the Military Commissions Act of 2006 and its effects).
86. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1125 U.N.T.S. 3.
87. See sources cited supra notes 25-29.
88. See infra notes 84-86 and accompanying text.
89. 10 U.S.C. §§ 104-522 (2000).
90. FEAVER, supra note 58, at 82-83.
91. Kohn, supra note 33, at 14.
92. The laws of war are often referred to as the "law of armed conflict," and by some as "international humanitarian law." This Article will use the term recognized by the U.S. government for this body of law, the "law of armed conflict." See generally DOCUMENTS ON THE LAW OF WAR (Adam Roberts Si Richard Guelff eds., 3d ed. 2000).
93. See Charles J. Dunlap, Jr., Air Combat Command Staff Judge Advocate, Address at the Air Si Space Conference and Technology Exposition 2005, The Law of Armed Conflict (Sept. 13, 2005) [hereinafter Dunlap Address].
94. Charles J. Dunlap, Jr., The Revolution in Military Legal Affairs: Air Force Legal Professionals in 21st Century Conflicts, 51 A.F. L. REV. 293 (2001).
95. See generally FREDERIC L. BORCH, JUDGE ADVOCATES IN COMBAT: ARMY LAWYERS IN MILITARY OPERATIONS FROM VIETNAM TO HAITI (2001).
96. Although specific numbers are not readily available, the U.S. Marine Corps (the first staff judge advocate was appointed by the commandant of the Marine Corps in 1966) and the U.S. Coast Guard (the legal program officially began in 1934) have also both undergone commensurate increases in their number of JAGs. See SJA's to the CMC, http://sja.hqmc.usmc.mil/history/SJA.htm (last visited July 25, 2007) (Marine Corps); History of the Coast Guard Legal Program, http://www.uscg.mil/legal/history/historymain.html (last visited July 25, 2007).
97. For in-depth histories of the U.S. Army, the U.S. Air Force, and the U.S. Navy JAG programs, see The Judge Advocate General's Legal Center and School, History of the Judge Advocate General's Corps, http://www.jagcnet.army.mil/ JAGCNETINTERNET/HOMEPAGES/ AC/TJAGSAWEB.NSF (last visited June 16, 2007);
98. THE REPORTER (SPECIAL HISTORY EDITION) (1999), http://afls14.jag.af.mil]/TJAG/Reading%20Room/ 50th%20Anniversary%20Reporter.pdf; U.S. Navy JAG History, http://www.jag.navy. mil/about us/history3.htm (last visited Feb. 26, 2007).
99. For a legislative history of the enactment of the Uniform Code of Military Justice (UCMJ), see Index & Legislative History of the UCMJ: Military Legal Resources, http://www.loc.gov/ rr/frd/Military_Law/ index_legHistory.html (last visited June 16, 2007). See also FRANCIS A. GILLIGAN SL FREDERIC I. LEDERER, COURT-MARTIAL PROCEDURE (3ED.2006); FREDERIC I. LEDERER, MILITARY LAW: CASES AND MATERIALS (2003).
100. See generally Steven B. Lichtman, The Justices and the Generals: A Critical Examination of the U.S. Supreme Court's Tradition of Deference to the Military, 1918-2004, 65 MD. L. REV. 907 (2006) (providing a history of the Court's reluctance to interfere in military affairs, with the notable exception of the late 1960s to early 1970s during the Vietnam War era).
101. See generally BORCH, supra note 84.
102. See Waltet T. Cox, III, Echoes and Expectations: One Judge's View, MIL. L. REV., Mar. 1999, at 183, 187.
103. Id. at 187.
104. Pub. L No. 81-506, ch. 169, 64 Stat. 108 (1950) (codified as amended at 10 U.S.C. §§ 801-946 (2000)).
105. Recognizing the unique needs of the U.S. Armed Forces, the UCMJ and the Manual for Courts Martial provide for a distinct federal criminal system for military members. See 10 U.S.C. § 802.
106. The newly enacted UCMJ covered both common law crimes such as larceny, robbery, and murder as well as uniquely military crimes such as sodomy, adultery, fraternization, failure to obey orders, and misbehavior before sentinels during time of war.
107. See BORCH, supra note 84;
108. see also Christopher W. Behan, MIL. L. REV., Dec 2002, at 180 (reviewing BORCH, supra note 84).
109. Michael F. Lohr & Steve Gallotta, Legal Support in War: The Role of Military Lawyers, 4 CHI. J. INT'L L 465, 468-69 (2003).
110. See id. at 470.
111. Richard K. Betts, Compromised Command: Inside NATO's First War, FOREIGN AFF., Aug. 2001, at 126, 129-30 (book review). Richard Betts analyzed General Wesley Clark's book on operations during the Kosovo campaign and criticized lawyers for having actually conducted the war. Id.
112. See THE ARMY LAWYER: A HISTORY OF THE JUDGE ADVOCATE GENERAL'S CORPS 1775-1975, at 203-31 (1975).
113. The war also increased pressure for even more reform of the court-martial system. The U.S. Congress was increasingly willing to legislatively provide additional rights to military members. Policymakers, and those returning from draft service in Vietnam, increased pressure to bring equity to military justice and our federal criminal law. Although Congress still recognized the need for a separate system, policymakers began placing increased emphasis on the fairness of the military justice system.
114. George R. Smawley, The Past as Prologue: Major General George S. Prugh, Jr. (Ret.) (1942-1975) - Witness to Insurgent War, the Law of War, and the Expanded Role of Judge Advocates in Military Operations, MIL. L. REV., Spring 2006, at 96, 98 (quoting GEORGE S. PRUGH, VIETNAM STUDIES, LAW AT WAR: VIETNAM, 1964-1973 (1974), available at http://www.army.mil/cmhpg/ book/vietnam/law-war/law-fm.html). This same atmosphere, almost fifty years later in the war against al Qaeda, is found on an even greater scale as the Armed Forces fight against an enemy where there are no clear distinctions globally as to where the war front begins and where it ends.
115. SEE MICHAEL R. BELKNAP, THE VIETNAM WAR ON TRIAL: THE MY LAI MASSACRE AND THE COURT-MARTIAL OF LIEUTENANT CALLEY (2002).
116. Pub. L 90-632, 82 Stat. 1335 (1968) (amending UCMJ provisions).
117. Id. Those serving in this function were previously referred to only as "law officers."
118. See id. For a discussion of the emergence of military judges and their history,
119. see Weiss v. United States, 510 U.S. 163, 166-69 (1994).
120. See LEDERER, supra note 87, at 1-25.
121. See Universal Declaration of Human Rights, G.A. Res. 217A, at 71, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc A/810 (Dec. 12, 1948).
122. Id.
123. United States v. Calley, 46 C.M.R. 1131 (A.C.M.R. 1973), aff'd, 48 C.M.R. 19 (C.M.A. 1973).
124. See William George Eckhardt, My Lai: An American Tragedy, 68 UMKC L. REV. 671, 675 (2000). No Viet Cong were present and U.S. forces encountered little resistance. The next day, the troops swept through the village and burned houses, killed livestock, raped women, and groups of villagers were gathered together and shot. Id.
125. See Matthew Lippman, War Crimes: The My Lai Massacre and the Vietnam War, 1 SAN DIEGO JUST. J. 295 (1993).
126. See Department of Defense Directive 5100.77 (Nov 5, 1974); see also WILLIAM R. PEERS, DEP'T OF THE ARMY, REPORT TO THE DEPARTMENT OF THE ARMY REVIEW OF THE PRELIMINARY INVESTIGATIONS INTO THE MY LAI INCIDENT (1970), available at http://www.loc.gov/ rr/frd/military-law/pdf/RDAR-Vol-I.pdf.
127. Lohr & Gallotta, supra note 96.
128. See generally James E. Baker, LBJ's Ghost: A Contextual Approach to Targeting Decisions and the Commander in Chief, 4 CHI. J. INT'L L. 407 (2003).
129. See BORCH, supra note 84, at 326.
130. Smawley, supra note 101, at 147 (quoting U.S. Army Military History Institute, Senior Officers Debriefing Program: Conversations Between Major General George S. Prugh and Major (MAJ) James A. Badami, Lieutenant Colonel (LTC) Patrick Tocher, and Lieutenant Colonel Thomas T. Andrews 4 (Apr. 4, 1977) (unpublished manuscript, on file with the U.S. Army Judge Advocate General's Legal Center and School Library, Charlottesville, Virginia)).
131. For recent examples of how JAGs are now deeply involved in national policy debates over the War on Terror, see Tom Brune, Tribunal Bill Stalled: Bush Bill Allowing Military Trials Faces Objections From GOP Leaders, as Well as Dems and Pentagon, NEWSDAY, Sept. 8, 2006, at A28,
132. and Laurence Friedman Si Victor Hansen, Congress Should Champion the Advice of Military Lawyers, JURIST, Sept. 5, 2006, http://jurist.law.pitt.edu/forumy/2006/09/congress-should-championadvice-of.php.
133. Smawley, supra note 101.
134. See Charles J. Dunlap, Jr., It Ain't No TV Show: JAGs and Modem Military Operations, 4 CHI. J. INT'L L 479, 479 (2003).
135. Id.
136. Glenn M. Sulmasy, The Law of Armed Conflict in the Global War on Terror, International Lawyers Fighting the Last War, 19 NOTRE DAME J. L. ETHICS & PUB. POL'Y 309 (2005).
137. John Yoo, Courts at War, 91 CORNELL L REV. 573, 575-79 (2006).
138. See, e.g., Powell, supra note 40.
139. Hearing on Military Commissions and Standards Utilized in Trying Detainees Before the H. Comm. on Armed Services, 109th Cong. (2006) (statement of Rep. Hunter, Chairman, H. Comm. on Armed Services), available at http://armedservices.house.gov/comdocs/schedules/9-7-06 HunterOpeningStatement.pdf.
140. See Kenneth Anderson, The Limits of Pragmatism in American Foreign Policy: Unsolicited Advice to the Bush Administration on Relations With Non-Govemmental Organisations, 2 CHI. J. INT'L L. 371, 383 (2001) (discussing concerns with unaccountable nongovernmental organizations and their impact on American foreign policy and objectives, stating that they have become virtually "anti-democratic" in nature).
141. See generally BORCH, supra note 84;
142. Lohr Si Gallotta, supra note 96.
143. RICHARD A. POSNER, NOT A SUICIDE PACT: THE CONSTITUTION IN A TIME OF NATIONAL EMERGENCY (2006) (discussing the dangers of becoming too engrossed in adherence to international law);
144. see also Dunlap Address, supra note 82.
145. DEP'T OF THE NAVY, THE COMMANDER'S HANDBOOK ON THE LAW OF NAVAL OPERATIONS, NWP 1-14M, ch. 5.2 (1995) ("The law of armed conflict is not intended to impede the waging of hostilities.... [T]hese principles do not prohibit the application of overwhelming force against enemy combatants, units and material."). This manual, used by all U.S. Armed Forces and many armed forces around the world, makes clear in its definition of the law of armed conflict that such law is not to interfere with mission accomplishment.