IN THE COMMON DEFENSE Part 10 docx

P1: OTE 0521877636Xnot CUFX132/Baker 0 521 87763 6 March 21, 2007 9:16 Notes to Pages 189–198 363 Lebanon were not engaged in hostilities until the barracks bombing in October 1983. The Congress subsequently passed a Joint Resolution authorizing the continued deployment of Marines to Beirut as well as a date certain for their withdrawal. 28. Youngstown, at 879–880. 29. See Campbell, (D.C. Cir. 2000) as well as Raines v. Byrd, 117 S. Ct. 2312 (1997). 30. Campbell, ibid., at 23 (D.C. Cir. 2000). 31. See, Ginsberg & Sons, Inc. v. Popkin, 285 U.S. 204, 208, 76 L. Ed. 704, 52 S. Ct. 322 (1932). 32. The president’s inherent constitutional authority to permit troops to remain in hostilities for more than sixty/ninety days may raise a different set of foreign affairs issues than are raised by the decision to initially deploy armed forces. Moreover, Congress’s authority to suspend or terminate hostilities, based on Art. I, Section 8, is not necessarily as extensive as its authority to make war. For example, the decision to terminate hostilities may more deeply implicate presidential authority in the area of foreign affairs. By eighteenth-century standards, the termination of a war would necessarily involve the president’s treaty-making authority, as under international law declared wars were terminated pursuant to treaty. By further example, it is not hard to imagine that a decision not to enter a conflict would have a very different foreign relations impact than a decision to withdraw halfway through; the latter would more likely break an alliance or rupture relations with third countries left stranded, thus implicating the president’s authority in the area of foreign relations, in addition to his authority as commander in chief and chief executive. 33. See, for example, Laws and Customs of War on Land, October 18, 1907 36 STAT 2277 (hereinafter Hague Convention IV); Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, August 12, 1949, 6 UST 3114 (1950) (hereinafter Geneva Convention I); Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, August 12, 1949, 6 UST 3316 (1950) (hereinafter Geneva Convention II); Convention Relative to the Treatment of Prisoners of War, August 12, 1949, 6 UST 3316 (1950) (hereinafter Geneva Convention III); Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, 6 UST 3516 (1950) (hereinafter Geneva Convention IV). 34. Shabtai Rosenne, Practice and Methods of International Law, p. 55 (Oceana Publications: New York, 1984). 35. Restatement of Foreign Relations Law Third, at 381 (St. Paul: American Law Institute, 1987). 36. The literature and commentary are extensive. For an overview, see Turner and Moore, Regulating Covert Action. 37. The French text of the Charter is also authoritative and references the word “aggression” in lieu of “armed attack.” 38. For background on the ICJ, its status, and the status of its opinions in international law, see Statute of the International Court of Justice. 1945 U.S.T. Lexis 199, 3 Bevans 1153 (1945). There is extensive commentary on the ICJ’s exercise of jurisdiction in the Nicaragua case including in many leading textbooks on international law and in the American Journal of International Law. 39. See, Imanuel Geiss, Ed., July 1914: The Outbreak of the First World War (New York: W. W. Norton, 1967). 40. The rebels were led by William Lyon Mackenzie, a newspaper publisher and sometime Member of Parliament deeply enmeshed in Canadian disputes between Upper and Lower Canada as well as the Tory Party and Reform movement at the time. Mackenzie even- tually fled to New York State where he was tried in 1839 for violating U.S. neutrality laws. He was sentenced to a $10 fine and eighteen months in jail. He was pardoned after twelve months. Following passage of an Amnesty Act, he returned to Canada and was once again elected to the Parliament. See, Dictionary of Canadian Biography, at http://www.biographi.ca/EN/showBioPrintable.asp?BioID=38684. 41. The Papers of Daniel Webster, Diplomatic Papers, Volume 1, 1841–1843. Letter to Fox 24 April 1841. 42. Restatement Third, at 382. P1: OTE 0521877636Xnot CUFX132/Baker 0 521 87763 6 March 21, 2007 9:16 364 Notes to Pages 200–213 43. As discussed in the previous chapter, the 9/11 Commission revealed that the United States was pursuing the same objective through parallel intelligence means. 44. The doctrine was also advanced in multiple public appearances by the president and his senior advisors. See for example, President Bush’s Graduation Speech at West Point on June 1, 2002. Available at www.whitehouse.gov. 45. 2002 Strategy, at 15 and 5. 46. Ibid., at 15. 47. 1999 Strategy, at 3, 8, 21, and 28. 48. President Bush Outlines Iraqi Threat, Remarks bythe president on Iraq, Cincinnati Museum Center, October 7, 2002. (Available at www.whitehouse.gov ). 49. Ron Suskind, The One Percent Doctrine (New York: Simon & Schuster, 2006) at 62. 50. 2006 Strategy,at6. 51. Office of the Press Secretary, Briefing by Tony Snow, July 10, 2006. Available at www.whitehouse.gov/news/releases. 52. President George Bush, Commencement Address at the United States Military Academy, Mitchie Stadium, West Point, New York, May 27, 2006. 53. Defense Secretary John Reid: 20th-Century Rules, 21st Century Conflict, Ministry of Defense, 3 April 2006. Available at http://www.britainusa.com/secions/articles show nt1.asp?d=0&=41072&L1=&L2=&a=41586. (accessed April 24, 2006). 54. Anthony Faiola, “In Japan, Tough Talk About Preemptive Capability,” The Washington Post, July 11, 2006. 55. Bruce Wallace, “U.S. Is Japan’s Nuclear Shield, Rice Says,” The Los Angeles Times, October 19, 2006. 56. Restatement Third, ibid., at 383. 57. The reference is to Hugo Grotius, The Law of War and Peace (1625). 58. UN Security Council Resolutions are accessible on the UN website, http://un.org/docs/sc/. 59. See, William H. Taft and Todd F. Buchwald, “Preemption, Iraq, and International Law,” 97 American Journal of International Law 557 (July 2003). 60. See, e.g., President Clinton’s speech to the UN, September 21, 1999 (“By acting as we did, we helped to vindicate the principles and purposes of the U.N. Charter, to give the U.N. the opportunity it now has to play the central role in shaping Kosovo’s future. In the real world, principles often collide, and tough choices must be made. The outcome in Kosovo is hopeful.”) 61. See UNSCRs 1239 (14 May 1999), 1203 (24 October 1998), 1160, 1199. 62. Sean Murphy, Humanitarian Intervention: The United Nations in an Evolving World Order (Philadelphia: Univ. of Penn. Press, 1996). Murphy points out that the great power motives were less beneficent than presented at the time, a recurring theme throughout his examples. 63. Final Report of the Prosecutor by the Committee Established to Review the NATO Bomb- ing Campaign Against the Federal Republic of Yugoslavia. Available at http://www.un.org/ icty/pressreal/nato061300.htm (Accessed November 6, 2006). 64. Statement by U.N. Secretary General Kofi Annan in New York, 24 March 1999, SG/SM/6938 available at http://www.un.org/News/Press/docs/1999/sgsmxxxx.doc.htm (visited 3/5/07). 65. W. Michael Reisman, “Unilateral Act and the Transformation of the World Constitutive Process: The Special Problem of Humanitarian Intervention,” 11 European Journal of Inter- national Law 15 (2000). 66. Steven Weisman, “Powell Says Rapes and Killings in Sudan Are Genocide,” The New York Times, September 10, 2004. 67. Acting under Chapter VII in August, 2006, the Security Council authorized the United Nations Mission in Sudan (UNMIS) “to use all necessary means as it deemed within its capabilities: to protect civilians under threat of physical violence. ” (See, UNSCR 8821). However, UNMIS has been woefully under-resourced and has not had the capa- bilities to fulfill this mission, again reflecting a lack of political willful rather than legal authority. 68. and such use of force is consistent with international law, or the United States is other- wise prepared to act outside international law, or articulate a new customary rule law. P1: OTE 0521877636Xnot CUFX132/Baker 0 521 87763 6 March 21, 2007 9:16 Notes to Pages 213–216 365 69. See, ICTY Opinion. 70. Title 18 of the US Code establishes U.S. criminal jurisdiction over war crimes committed by or against members of the U.S. armed forces or U.S. nationals. Note that 18 USC §2441’s substantive prohibitions derive meaning through cross-reference to the Geneva Conven- tions, among other international norms. At the same time, the Code as amended by the Military Commissions Act of 2006 reserves to the president the authority to interpret the meaning of the Law of Armed Conflict. U.S. jurisdiction to enforce the LOAC is also found in the Uniform Code of Military Justice (UCMJ). See, for example, Articles 2, 18, and 21, Uniform Code of Military Justice, 10 USC §§802, 818, and 821. Jurisdiction to punish viola- tions of the LOAC is also exercised through application of the punitive articles of the UCMJ, as in the case of William Calley, who was convicted after the My Lai massacre of 22 counts of murder under Article 118 of the UCMJ. United States v. Calley, 22 CMA 534 (1973). 71. U.S. Const. Art II, §3. 72. DOD Joint Publication 3-0, Doctrine for Joint Operations (Sept 10, 2001); DOD Law of War Program, Department of Defense Directive 2311.01E, para. 4.1 (May 9, 2006). 73. The cartridges were first manufactured in Dum Dum, India. For a description of the horrific effect of these types of cartridges on charging infantry, see the description of the Battle of Omdurman in Mark Urban, Generals, at 192 (London: Faber and Faber, 2005). 74. See, e.g., Lionel Beecher, “The Campaign to Ban Cluster Bombs,” Council on Foreign Rela- tions, November 21, 2006; “Red Cross Steps up Campaign Against Cluster Bombs,” USA Today, November 7, 2006; “Norway Plans Talks on Cluster-Bomb Ban,” Washington Times, November 18, 2006. 75. See, Article 37.2 of Protocol I. 76. Article 23 (f), Hague Convention No. IV, 1907. 77. Some illustrative definitions follow. Necessity That principle which justifies those measures not forbidden by international law which are indispensable for securing the complete submission of the enemy as soon as possible. (Law of War Handbook, International and Operational Law Department, Judge Advocate General’s School, U.S. Army, 2005, at 164.) Military Objective Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. (Protocol I to the Geneva Conventions of 1949 (1977) 1123 U.N.T.S. 3, Art. 52.2) In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used. (Protocol I, Art. 52.3) When objects are used concurrently for civilian and military purposes, they are liable to attack if there is a military advantage to be gained in their attack. (“Military advantage” is not restricted to tactical gains, but is linked to the full context of a war strategy, in this instance, the execution of the Coalition war plan for liberation of Kuwait). (Desert Storm, After Action Report, at 0–11.) Military objective is a component of military necessity. Once a commander determines he or she has a military necessity to take a certain action or strike a certain target, then he or she must determine that the target is a valid military objective. The current defi- nition of military objective is found in GP I, article 52(2). (Law of War Handbook, Ibid., at 165–66). Discrimination or Distinction Requires combatants to distinguish between military targets and civilian objects and persons. P1: OTE 0521877636Xnot CUFX132/Baker 0 521 87763 6 March 21, 2007 9:16 366 Notes to Page 216 Basic Rule Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives. (Article 48, Protocol I) In the conduct of military operations at sea or in the air, each Party to the conflict shall, in conformity with its rights and duties under the rule of international law applicable in armed conflict, take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects. (Protocol I, Article 57.4) Indiscriminate attacks are prohibited. Indiscriminate attacks are: (a) those which are not directed at a specific military objective; (b) those which employ a method or means of combat which cannot be directed at a specific military objective; or (c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol. (Protocol I, Art. 51.4) There is a necessity for distinguishing between combatants, who may be attacked, and noncombatants, against whom an intentional attack may not be directed, and between legitimate military targets and civilian objects. (Department of Defense, Final Report to Congress: Conduct of the Persian Gulf War, (1992). The principle of distinction is sometimes referred to as the ‘grandfather of all principles,’ as it forms the foundation for much of the Geneva tradition of the law of war. The essence of the principle is that military attacks should be directed at combatants and military targets, and not civilians or civilian property. GP I, article 48 sets out the rule. (Law of War Handbook, at 166) Proportionality requires that loss of life and damage to property incidental to attacks must not be excessive in relation to the concrete and direct military advantage expected to be gained. With respect to attacks, the following precautions shall be taken: (a) those who plan or decide upon an attack shall: (iii) refrain from deciding to launch any attack which may be expected to cause inci- dental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. (Protocol I, Article 57.2) The test to determine if an attack is proportional is found in GP I, article 51(5)(b). Note: This principle is only applicable when an attack has the possibility of affecting civilians. If the target is purely military with no known civilian personnel or property in the vicinity, no proportionality analysis need be conducted. (Law of War Handbook, at 166). Now consider the principles applied on a sample Rules of Engagement Card used during the First Gulf War/Desert Storm. ALL ENEMY MILITARY PERSONNEL AND VEHICLES TRANSPORTING THE ENEMY OR THEIR SUPPLIES MAY BE ENGAGED SUBJECT TO THE FOLLOWING RESTRICTIONS: A. Do not engage anyone who has surrendered, is out of battle due to sickness or wounds, is shipwrecked, or is an aircrew member descending by parachute from a disabled aircraft. B. Avoid harming civilians unless necessary to save U.S. lives. Do not fire into civilian populated areas or buildings which are not defended or being used for military purposes. C. Hospitals, churches, shrines, school, museums, national monuments, and any other histor- ical or cultural sites will not be engaged except in self-defense. D. Hospitals will be given special protection. Do not engage hospitals unless the enemy uses the hospital to commit acts harmful to U.S. forces, and then only after giving a warn- ing and allowing a reasonable time to expire before engaging, if the tactical situation permits. P1: OTE 0521877636Xnot CUFX132/Baker 0 521 87763 6 March 21, 2007 9:16 Notes to Pages 216–218 367 E. Booby traps may be used to protect friendly positions or to impede the progress of enemy forces. They may not be used on civilian personal property. They will be recovered or destroyed when the military necessity for their use no longer exists. F. G. Avoid harming civilian property unless necessary to save U.S. lives. Do not attack traditional civilian objects, such as houses, unless they are being used by the enemy for military purposes and neutralization assist in mission accomplishment. H. Treat all civilians and their property with respect and dignity. Before using privately owned property, check to see if publicly owned property can substitute. No requisitioning of civilian property, including vehicles, without permission of a company level commander without giving a receipt. I. J. REMEMBER 1. FIGHT ONLY COMBATANTS. 2. ATTACK ONLY MILITARY TARGETS. 3. SPARE CIVILIAN PERSONS AND OBJECTS. 4. RESTRICT DESTRUCTION TO WHAT YOUR MISSION REQUIRES. (From, Rules of Engagement (ROE) Handbook for Judge Advocates, Center for Law and Military Operations, Judge Advocate General’s School, U.S. Army, Charlottesville, VA (2000)). For additional illustrative definitions and discussion of these terms, as well as propor- tionality and military objective, see for example, W. Hays Parks, Air War and the Law of War, 32 AF L Rev 1 (1990); William J. Fenwick, The Rule of Proportionality and Protocol I in Conventional Warfare, 98 Mil L Rev 91 (1982). See also Protocol Additional to the Geneva Conventions of Aug 12, 1949, and Relating to the Protection of Victims of Interna- tional Armed Conflicts, Dec 12, 1977, 16 ILM 1391, art 48–58 (1978) (hereinafter Additional Protocol I); Chapter 8, “The Law of Targeting,” Annotated Supplement of the Commander’s Handbook on the Law of Naval Operations (Oceans Law and Policy Dept 1997). Operational Law Handbook 2002, ch 2, International and Operational Law Department, The Judge Advo- cate General’s School, U.S. Army. I am not aware of an authoritative statement by the United States as to which tex- tual provisions and operational elements of the law of armed conflict reflect custom- ary international law. However, in public statements and filings before the ICTY the United States has stated that those provisions relating to the methods and means of war- fare are customary in nature, and therefore, binding on states that are not party to the Protocol. 78. In one such instance, for example, overhead photographs showed a company-sized forma- tion of Taliban military personnel attending a funeral. The media broadcast the photos, which launched a debate as to why the United States had held off on an air strike. Outside the photo frame was a village. There followed a story that the commander had deferred a strike out of concern that the net military gain would be overtaken by the potential for collateral casualties in the village and the negative impact on the local population of strik- ing what might have been a funeral, albeit a “military” funeral. (October 5, 2006). See also, Moshe Yaalon, “The Rules of War,” The Washington Post, August 3, 2006 (the writer, a retired Lieutenant General who served as Chief of Staff of the Israeli Defense Forces, 2002–2005, describes “one of countless examples” where commanders selected a smaller munition that would destroy only the top floor of the target building because commanders knew a larger bomb would endanger forty families in the vicinity. The decision was taken on policy grounds. As it turned out, in the case Yaalon cites, the terrorists were meeting on the ground floor and the cell lived to fight another day.) 79. New Wars, New Laws? Applying the Laws of War in 21st Century Conflicts, David Wippman and Matthew Evangelista eds. (Ardsley, New York: Transnational Publishers, 2005); Michael Reisman and Chris Antoniou, The Laws of War: A Comprehensive Collection of P1: OTE 0521877636Xnot CUFX132/Baker 0 521 87763 6 March 21, 2007 9:16 368 Notes to Pages 218–224 Primary Documents on International Laws Governing Armed Conflict (New York: Vintage, 1994). 80. On the policy value of reciprocal treatment see, Milt Bearden, “When the CIA Played by the Rules,” The New York Times, November 4, 2005; See also, James E. Baker, “LBJ’s Ghost: A Contextual Approach to Targeting Decisions and the Commander in Chief,” 4 Chi. J. Int’l L 407 (Fall 2003); “When Lawyers Advise Presidents in Wartime: Kosovo and the Law of Armed Conflict,” 55 Naval War Coll Rev 11 (Winter 2002). 81. See, e.g., President George W. Bush, Address to the Nation (Mar. 19, 2003), available online at http://www.whitehouse.gov/news/releases/2003/03/20030319-17.html (visited Sept 13, 2003) (condemning Iraqi use of human shields in the Second Gulf War); Judith Miller, “War in the Gulf: the Arabs; Neighboring Allies Outraged by Iraqi Violence in Kuwait,” The New York Times 8 (Feb 23, 1991) (discussing Arab reactions to the use of human shields in the First Gulf War). See, for example, Melissa Healy, “Pentagon Details Abuse of American POWs in Iraq; Gulf War: Broken Bones, Torture, Sexual Threats Are Reported. It Could Spur Further Calls For War Crimes Trial,” The Los Angeles Times 1 (Aug 2, 1991). 82. Major General J. N. Mattis, US Marines Commanding General, 1st Division (REIN), Com- manding General’s Message to All Hands (Mar 2003) available online at http://www.usni.org/ resources/Iraq/mattis USMC to all hands.htm (visited Sept 6, 2003). 83. Reconnaissance by fire is a method of searching out the enemy by firing on suspected positions and thus drawing return fire, helping to identify the location and perhaps the strength of the opponent. 84. See C. B. Shotwell, “Economy and Humanity in the Use of Force: A Look at the Aerial Rules of Engagement in the 1991 Gulf War,” 4 USAFA J Leg Stud 15, 17–20 (1993) (citing numerous sources supporting the view that contrary to the conventional wisdom of the time, bombing of civilian populations during World War II did not break the morale of civilian communities, but rather strengthened their resolve to fight against their enemies). 85. Thanassis Cambanis, “In Arab World, Zarqawi Tactics Bred Disgust,” The Boston Globe, June 12, 2006; “Poll: Jordanians Classify Al Qaeda as Terrorists,” Jerusalem Post, January 6, 2006. 86. Headquarters, Department of the Army, Counterinsurgency, Field Manual 3–24, Marine Corps Warfighting Publication No. 3-33.5, 15 December 2006, at 1–25 available at http:// usacac.arm.mil/CAC/Repository/Materials/COIN-FM3–24.pdf (accessed January 2007). 87. See Geoffrey Best, War and Law Since 1945, 115–23, 253–66 (Oxford: Clarendon, 1994) (explaining how the protection of civilian life was a major international concern behind the Geneva Conventions and “has become the driving concern of contemporary IHL development”); W. Michael Reisman and Chris T. Antoniou, eds, The Laws of War 80–93 (Vintage 1994) (citing numerous international laws governing the protection of civilians during wartime); Department of the Army Field Manual; The Law of Land Warfare 3 (Dept of the Army 1956) (noting that two of the three purposes of the “law of land warfare” are directed toward such an end; the law of land warfare is inspired by the desire to diminish the evil of war by protecting “both combatants and noncombatants from unnecessary suf- fering” and “[s]afeguarding certain fundamental human rights of persons who fall into the hands of the enemy, particularly prisoners of war, the wounded and sick, and civilians ”). Major Lisa L. Turner & Major Lynn G. Norton, Civilians at the Tip of the Spear,51AFLRev 1, 76–82 (2001) (explaining the provisions of the Geneva Conventions intended to protect civilians). 88. Hassan Fattah and Steven Erlanger, “Israel Attacks Beirut Airport and Sets Up Naval Block- ade,” The New York Times, July 13, 2006. 89. See, for example, Human Rights Watch, Civilian Deaths in Nato Air Campaign, Sum- mary (February 2000), available online at www.hrw.org/reports/2000/nato (visited Sept 13, 2003) (implying that large numbers of civilian deaths resulted from questionable target- ing and munition decisions); Human Rights Watch, New Figures on Civilian Death in Kosovo War (Feb 7, 2000), available online at www.hrw.org/press/2000/02/nato207.htm (vis- ited Sept 13, 2003) (alleging that “‘[a]ll too often, NATO targeting subjected the civilian P1: OTE 0521877636Xnot CUFX132/Baker 0 521 87763 6 March 21, 2007 9:16 Notes to Pages 224–234 369 population to unacceptable risks’” and suggesting that illegitimate targeting and muni- tion decisions resulted in large numbers of civilian deaths). 90. See Protocol I art 57, §4; Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations 8-2 Oceans Law and Policy Dep’t, The United States Naval War College, (1997) (cited in note 18). 91. 10 U.S.C. §162(b). 92. See, Baker, “LBJ’s Ghost” and “When Lawyers Advise Presidents.” 93. See, The Last Battle. 94. See, Graham Allison, Essence of Decision: Explaining the Cuban Missile Crisis (Boston: Little, Brown, 1971). 95. See, Eliot A. Cohen, Supreme Command: Soldiers, Statesmen and Leadership in Wartime (Free Press, 2002); Baker, “LBJ’s Ghost,” and Wesley Clark, Waging Modern War (New York: Public Affairs, 2001)(taking issue with the operation of the chain of command through the Chairman). 96. Collectively this chain of command is known as the National Command Authorities (NCA); however, former Secretary of Defense Donald Rumsfeld banished the term in the interest of clarity. In lieu of the amorphous NCA, Department of Defense personnel were instructed to indicate which official in the chain of command authorized an action. Further, com- batant commanders were no longer referred to as CinCs. There is only one commander in chief to whom combatant commanders report through the Secretary of Defense. Whether or not this is the stuff of secretarial decision, clarity serves a useful military purpose. This takes on constitutional significance when a military operation or target is undertaken pursuant to the president’s constitutional authority, or internal directive requires the Sec- retary’s approval. Nonetheless, the military ship can turn slowly; NCA and CINC will likely persist in the vernacular of national security process as well as law (e.g., 10 U.S.C. “The CinC’s Initiative Fund” available to unified commanders for unexpected operational expenditures). 97. For example, while deployed for training at Camp Lejuene a Marine Battalion would remain within the administrative command of the Commandant of the Marine Corps; however, once assigned to an operational unit, the battalion would fall under the opera- tional command of the relevant unified commander. 98. 10 U.S.C. §151(d). 99. H. R. McMaster, Dereliction of Duty: Lyndon Johnson, Robert McNamara, the Joint Chiefs of Staff, and the Lies That Led to Vietnam (New York: HarperCollins, 1997). 100. According to media accounts, the president has approved the creation of a tenth com- batant command with geographic responsibility for Africa. See, Jeff Schlogol, “Africa Command Plans Approved by Bush, DOD Officials Confirm,” Stars and Stripes, Decem- ber 30, 2006. Combatant responsibility for Africa currently resides with European Com- mand, Central Command, Pacific Command, and Special Operations Command depend- ing on the region and function in question. See, Unified Command Plan available at http://www.defenselink.mil/specials/unifiedcommand/ (accessed January 2007). 101. This text is quoted directly from the command websites. The mission statements may be amended from time to time and may have been since this text was first set. See, http://www.defenselink.mil/sites/u.html. or visit the Combatant Command websites directly. 102. See, Univ. of Chicago Journal of International Law, Vol. 4, Fall 2003 on “The Role of the Lawyer in War;” Frederic Borch, Judge Advocates in Combat: Army Lawyers in Military Operations from Vietnam to Haiti (Washington: Office of the Judge Advocate General and Center of Military History, 2001). 103. “The Role of the Lawyer,” ibid. 104. Paul Watson, “NATO Takes Security Helm,” The Los Angeles Times, October 6, 2006. 105. H.R. 3308, May 8, 1996, Office of Legal Counsel Memorandum for Alan J. Kreczko, Special Assistant to the president and Legal Advisor to the National Security Council from Walter Dellinger, available at the OLC website. P1: OTE 0521877636Xnot CUFX132/Baker 0 521 87763 6 March 21, 2007 9:16 370 Notes to Pages 235–242 106. See, Article 92 UCMJ as well as United States v. New, 55 MJ 95 (2001) and United States v. Dearing, 63 MJ 478 (2006). 107. “War is too important to be left to the generals.” 108. Max Hastings, “Behind the Revolt – The Generals’ View: To the Micromanager Goes the Blame,” The Washington Post, April 26, 2006. 109. General Tommy R. Franks, Briefing on Military Operations in Iraq (Mar 22, 2003), avail- able online at http://www.centcom.mil/CENTCOMNews/transcripts/20030322.htm (vis- ited Sept 8, 2003). 110. Report of the DoD Commission on Beirut International Airport Terrorist Act, Oct 23, 1983 (Dec 20, 1983) available online at http://www.ibiblio.org/hyperwar/AMH/XX/ MidEast/Lebanon-1982–1984/DOD-Report/ (visited Sept 8, 2003) (hereinafter Long Com- mission Report) (discussing circumstances and aftermath of terrorist attack on the U.S. compound in 1983). 9. Homeland Security 1. I use the phrase preventive diplomacy to distinguish the concept from public diplomacy, which in U.S. practice equates to public relations, a necessary part of preventive diplo- macy, but only one of the full array of tools available to address the root causes of ter- rorism, including foreign and economic assistance provided by governmental and non- governmental organizations. For background on Foreign Assistance and Economic Assis- tance see, Buchwald and Matheson, “U.S. Security Assistance and Related Programs,” Chap. 27 in National Security Law, Turner & Moore. 2. The Department of Defense and military doctrine distinguish homeland defense from homeland security. In the military lexicon, “defense” is the physical “protection of the US sovereignty, territory, domestic population, and critical defense infrastructure against external threats and aggression, or other threats as directed by the president. The Depart- ment of Defense is responsible for homeland defense.” Homeland security is defined as “a concerted national effort to prevent terrorist attacks within the United States, reduce America’s vulnerability to terrorism, and minimize damage and recover from attacks that do occur. The Department of Homeland Security is the lead federal agency for homeland security.” “Strategy for Homeland Defense and Civil Support,” Department of Defense, June 2005, at 5. Three points emerge. First, the Department’s and military’s definition and perception of their roles are subject to presidential direction and amendment. This is critical, because in its present distillation the definition of “security” is oriented toward terrorism and not the broader range of manmade and natural emergencies encompassed within the home- land security rubric. Second, however the terms are bureaucratically defined, the Department does not feel direct responsibility for that portion designated “security” rather than “defense.” How- ever, the distinction between defense and security are not clear in the middle gray of homeland security incidents. Therefore, like much else with homeland security, consideration and reconsideration of the manner in which agencies define their roles are critical. Are there gaps, for example, between what DHS defines as its areas of lead responsibility and those areas that DOD defines as its lead areas of responsibility, and if so, are those gaps filled by other agencies like HHS? 3. Lawrence Wein, “Face Facts,” op-ed contributor, The Washington Post, October 25, 2006. Letters to the Editor, Sunday October 29, 2006, from among others, John Agwunobi, M.D., Assistant Secretary for Health, HHS. Ceci Connolly, “U.S. Plan for Flu Pandemic Revealed,” The Washington Post, April 16, 2006. 4. See, The National Strategy for Pandemic Influenza, November 1, 2005 and related docu- ments at PandemicFlu.gov (accessed November 12, 2006). 5. See, Newt Gingrich, “The Only Option is to Win,” The Washington Post, August 11, 2006; Graham Allison, “Nuclear Terrorism the Gravest Threat Today,” Wall Street Journal P1: OTE 0521877636Xnot CUFX132/Baker 0 521 87763 6 March 21, 2007 9:16 Notes to Pages 242–247 371 Europe, July 14, 2003; John Arguilla, “In the Fight Against Terrorism, The Long War Is the Wrong War: Sooner or Later, Terrorists Will Get, and Use, WMD,” July 16, 2006, San Francisco Chronicle; Sam Nunn, “Nuclear Pig in a Poke,” Wall Street Journal, May 24, 2006. 6. “The Terrorism Index: A Survey of the U.S. National Security Experts on the War on Terror.” March 8-April 21, 2006. Available at www.americanprogress.org (viewed June 29, 2006). 7. Harold D. Lasswell, “The Garrison State,” American Journal of Sociology,” Vol. 46, Issue 4 (Jan. 1941), 459. 8. See, e.g., Donald Rumsfeld, in a Press Conference at NATO Headquarters, Brussels, Belgium, Thursday, June 6, 2002, available at:http://www.defenselink.mil/transcripts/ 2002/t06062002 t0606sd.html 9. Recall the rush for duct tape after Secretary Ridge recommended keeping a supply on hand in February 2003. In Connecticut, one eager person covered his house in duct tape. The duct tape soon threatened the man’s supply of fresh air as well as the goodwill of his neighbors. 10. Quoted in Catastrophic Terrorism: Imminent Threat, Uncertain Response, at 32 (Cantigny Conference Series, McCormick Tribune Foundation 2001). 11. See, the Sixth Amendment to the Constitution and Duncan v. Louisiana, 391 U.S. 145 (1968). 12. See the Terrorism Act of 2000, Schedule 8, Part II, as amended by the Terrorism Act of 2006, Part 2, Sections 23–25. Available at http://www.opsi.gov.uk/Acts/acts2000/00011– u.htm (accessed November 2006). Compare, among other U.S. laws, 8 U.S.C. §1226a “Mandatory detention of suspected terrorists; habeas corpus; judicial review,” and 18 U.S.C. Appendix Rule 5, “Initial Appearance.” 13. Richard A. Posner, “We Need our Own MI5,” The Washington Post, August 15, 2006. 14. For a range of statistical data, see The National Strategy for Homeland Security, Office of Homeland Security, July 2002 (available at http://www.whitehouse.gov/homeland/book/ nat strat hls.pdf); U.S. Customs and Border Protection, “Fact Sheet,” on the Container Security Initiative, September 30, 2006 as well as other CSI related briefing sheets on securing U.S. ports (available at www.dhs.gov, visited November 2006); “Secure Seas, Open Ports: Keeping our waters safe, secure and open for business,” Depart- ment of Homeland Security, June 21, 2004 (at www.dhs.gov visited November 2006); see also, “Preventing Nuclear Smuggling: DOE Has Made Limited Progress in Installing Radiation Detection Equipment at Highest Priority Seaports,” Government Account- ability Office, GAO-375, March 31, 2005 (available at www.gao.gov visited Novem- ber 2006); the Northern Command website also provides some homeland statistics at http://www.northcom.mil/about us/history.htm. 15. Alan Sipress, “Computer System Under Attack,” The Washington Post, October 6, 2006. 16. Executive Order 13228, October 8, 2001. 17. As amended, the Council members include the president, the vice president, the secretary of the treasury, the secretary of defense, the attorney general, the secretary of health and human services, the secretary of transportation, the secretary of homeland security, the director of the Federal Emergency Management Agency, the director of the Federal Bureau of Investigation, the director of national intelligence, and the assistant to the president for homeland security. As noted later, the chairman of the Joint Chiefs of Staff is a statutory advisor to the HSC. 18. The secretary of state, the secretary of agriculture, the secretary of the interior, the secre- tary of energy, the secretary of labor, the secretary of commerce, the secretary of veterans affairs, the administrator of the Environmental Protection Agency, the assistant to the president for economic policy, and the assistant to the president for domestic policy “shall be invited to attend meetings pertaining to their responsibilities.” 19. The chief of staff to the president, the chief of staff to the vice president, the assistant to the president for national security affairs, the counsel to the president, and the director of the Office of Management and Budget “are invited to attend any Council meeting.” P1: OTE 0521877636Xnot CUFX132/Baker 0 521 87763 6 March 21, 2007 9:16 372 Notes to Pages 248–258 20. P.L. 107–296 (2002). 21. 6 U.S.C. §494. 22. 6 U.S.C. §493. 23. 6 U.S.C. §496. 24. Subject of course to specific funding limitations and restrictions. The State Department authorization acts, for example, limited the number of State employees that could be seconded to other agencies at any one time. On my watch, this argument quickly removed CIA’s legal objection to the detail of CIA personnel to serve on the NSC staff, which staff, of course, advised and assisted the NSC to which the DCI was a statutory advisor. Of course, policy and personnel officers may sometimes persuade their lawyers to make legal arguments to shield policy or fiscal objections, because a legal prohibition, if appropriately raised, is not subject to appeal up the policy chain of command. 25. The converse is not the case. The reference is to the principal deputy national security advisor. 26. Walter Pincus, “Hayden’s Hands-On Style Changes Tone at CIA,” The Washington Post, December 28, 2006. 27. Homeland Security Presidential Directive-1, “Organization and Operation of the Home- land Security Council,” October 29, 2001, as amended. Available at Federation of Ameri- can Scientists. 28. Remarks of the Staff Judge Advocate, Northern Command, at the Judicial Conference of the United States Court Appeals for the Armed Forces, May 17, 2006. 29. http://www.fema.gov/about/index.shtm (visited January 2007). 30. “A ‘Cutter’ is a Coast Guard vessel 65 feet in length or greater, having adequate accom- modations for crew to live on board. Larger cutters (over 180 feet in length) are under control of Area Commands (Atlantic Area or Pacific Area). Cutters at or under 180 feet in length come under control of District Commands.” For a list of cutters in the Coast Guard inventory see http://www.uscg.mil/datasheet/index.shtm (accessed November 11, 2006). See also, various GAO reports on modernizing the Coast Guard, including “Status of Deep- Water Fast Response Cutter Design Efforts,” June 15, 2006. Stephen Barr, “Coast Guard’s Response to Katrina a Silver Lining in the Storm,” The Washington Post, September 6, 2005. Ted Sherman, “Coast Guard Issues SOS,” Atlanta Journal-Constitution, November 25, 2005. 31. The figure is difficult to fix because statistics are kept of the general outline of the sea- coast, usually described as the coastline, and more detailed measure of the seacoast, usually referred to as the shoreline. Oddly enough, the length of the coastline is usually given as 95,000 miles by Homeland Security officials. The National Oceanographic and Atmospheric Administration figure is 88,633 as of 1975. Of course, with climate change and other variables the actual length of the shoreline may, in fact, vary from year to year; however, unlike the number of containers that enter the United States each year, this does seem a figure on which responsible officials and cartographers ought to be able to agree. 32. Government Accountability Office, “Federal Food Safety and Security System: Fundamen- tal Restructuring is Needed to Address Fragmentation and Overlap,” at 11, GAO-04–588T, March 30, 2004. 33. See, for example, PDD-56 “Managing Complex Contingency Operations,” May 1997; and, Presidential Decision/NSC-27 “Procedures for Dealing with Non-Military Incidents,” January 19, 1978. Available at the Federation of Americans Scientists website. 34. See NRP, available at the DHS website. See also, testimony of Brigadier General Broder- rick, and Robert Stephan, assistant Secretary for Infrastructure Protection, Department of Homeland Security, before the Senate Homeland Security and Governmental Affairs Committee, February 10, 2006. 35. Bureau of Justice Statistics. http://www.ojp.usdoj.gov/bjs/lawenf.htm (visited 8/17/06). 36. http://www.official-doucments.co.uk/document (visited August 17, 2006). 37. The phrase comes from Dick Clarke and Randy Beers. For first responder statis- tics see: U.S. Department of Justice, Bureau of Justice Statistics, Law Enforcement [...]... APNSA, 108 attorneys at, 312 Bush (George W.) designating members, 106 Clinton designating members, 106 decision-making process, participation in, 58–59 Deputies Committee duties, 107 108 meetings, 108 members, 108 establishment, 105 HSC, dual process distinct from (See Homeland security) intelligence products, 142 interagency working groups, 108 109 Legal Adviser, 311 members, 105 106 staff distinguished,... Years of the Victoria Cross, at 24 (London: Little, Brown (2004) 2 During the Clinton Administration the legal advisor reported to the national security advisor, and operated independently from, but in coordination with, the counsel to the president, the president’s senior legal advisor During the Bush administration the legal advisor reported directly to the counsel The role of the legal advisor in this... U.S interests in leading the PSI at the same time that the United States is the world’s number one arms merchant; and, (4) the variance in U.S policy (including “carrots” and “sticks”) offered to Libya, Iran, and North Korea to terminate their nuclear weapons programs Of course, there are rational policy explanations behind each tension, such as the necessity of maintaining a viable defense arms industry... example: (1) the tension between U.S and multilateral interests in nonproliferation, as reflected in the PSI, and the parallel interests of participant states in unilateral economic interests, as reflected by Australia’s apparent decision to enter the uranium enrichment market; (2) the competing interest in fully funding Nunn-Lugar while not creating market incentives for proliferation activities; (3) the commercial... (New York: Simon & Schuster, 2001) The reference here is to the 2006 DHS Inspector General’s report indicating that in response to the president’s direction in HSPD-5 that DHS identify potential terrorist targets in the United States the resulting list included everything from a petting zoo and popcorn factory to national landmarks like the Golden Gate Bridge 10 The National Security Lawyer 1 Peter... permits Parties and non-Parties to reach bilateral agreements that Parties will not surrender the citizens of non-Parties to the ICC or cooperate in their investigation and prosecution 113 Recollection of the author of comments made by Senator Mansfield while serving as U.S Ambassador to Japan in 1985 114 Henry Kissinger, “China: Containment Won’t Work,” The Washington Post, June 13, 2005 115 In terms... within the Federal Agency Unless otherwise specifically provided, the Federal Agency, not the organizational element is ordinarily considered the client The Federal Agency acts through its authorized officials the head of the organization is subject to being overruled by higher agency authority.” In other words, the Agency Head is the client The Rules note: The FBA is not empowered to discipline... registry fees and commercial status In theory, the flag state nation is supposed to have a “genuine link” to the vessel in question In addition, the flag state is responsible for “exercising effective authority and control over the ship in administrative, technical and labor matters,” including those necessary to provide for the safety of the ship and to adhere to international standards (i.e., IMO rules)... information flow, 104 in uencing policy through contacts with, 103 inquiries by media, effect on policy, 103 104 overview, 103 March 19, 2007 Index military force, centrality of, 99 models of, 121 National Security Act, under, 101 , 102 non-governmental organizations, role of, 104 105 NSC, by, 105 – 110 (See also National Security Council) overview, 99 100 president, centrality of, 99, 101 Presidential... Marshall, George, 297 Mattis, James, 221 Mayaguez incident, 51, 123, 181, 184, 187 McCaffrey, Barry, 302 McCone, John, 106 McHale, Paul, 290 McKinley, William, 182 Media, role in decision-making process, 103 104 control of information flow, 104 in uencing policy through contacts with, 103 inquiries by media, effect on policy, 103 104 overview, 103 Megaports Initiative, 284–285 Megatons to Megawatts program, . of Defense Donald Rumsfeld banished the term in the interest of clarity. In lieu of the amorphous NCA, Department of Defense personnel were instructed to indicate which official in the chain of. jurisdiction in the Nicaragua case including in many leading textbooks on international law and in the American Journal of International Law. 39. See, Imanuel Geiss, Ed., July 1914: The Outbreak of the. v. Dearing, 63 MJ 478 (2006). 107 . “War is too important to be left to the generals.” 108 . Max Hastings, “Behind the Revolt – The Generals’ View: To the Micromanager Goes the Blame,” The Washington