The legal system is ill-equipped to handle the litigation that arises from coverage denials under this exclusion. This Essay explores the difficulties of accurately attributing attacks and adjudicating these insurance-cove…. What will happen when those discriminated against in the name of national security turn to the courts for legal protection? The President is increasingly the epicenter of national security decision making, a development in tension with the shared war-making power in the Constitution.
Don't Change 'Don't Ask, Don't Tell'
Over the past three years, the number of human tragedies on the Mediterranean Sea has reached an unprecedented level. International criminal law has a name for what Islamic State has done to these women: gender-based persecu…. How does the United States enter and exit its international obligations? The Constitution provides no textual guidance for how, as a matter of domestic law, the United States can withdraw from an Article II treaty.
The Supreme Court has not clarified matters. In the face of this uncertainty, government officials and scholars alike have long debated …. On June 5, , the first revelation hit the front pages: documents provided by Edward Snowden showed that the National Security Agency NSA had for years ordered telephone companies to turn over our domestic telephone calling records en masse. The Edward Snowden revelations illustrated the ramifications of a domestic and international legal infrastructure that failed to keep up with technological advancements.
In November , President Obama announced his intention to dramatically reshape immigration law through administrative channels. Together with relief policies announced in , his initiatives would shield nearly half the population of unauthorized immigrants from removal and en….
Military doesn’t need don’t ask, don’t tell’
Introduction Since the s, the FBI has issued documents referred to as National Security Letters NSLs , which demand data from companies—including financial institution records and the customer records of telephone companies and communications service providers—for foreign intellig…. In this Essay, Professor Patrick Weil reexamines the constitutional function of the passport in relation to American citizenship. The State Department recently developed apolicy of passport revocation whereby some Americans are transformed into de facto stateless persons, like Edward Snowden, or are….
In this Essay, Professor Matthew Waxman argues that debates about constitutional war powers neglect the critical role of threats of war or force in American foreign policy.
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The right to counsel maintains an uneasy relationship with the demands of trials for war crimes. Whether ….
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One measure of Gideon v. Wainwright is that it made the U. Gideon , along with Miranda v. Arizona , is part of a democratic narrative shaped over dec…. The analogy is a powerful wea…. Federal and state law enforcement officials throughout the nation are currently using Global Positioning System GPS technology for automated, prolonged surveillance without obtaining warrants. As a result, cases are proliferating in which criminal defendants are challenging law enfor….
There is a widespread intuition that the Constitution provides much less than a full blueprint of the structure and powers of the contemporary federal government. In particular, it i…. This Note offers a new framework to evaluate judicial deference in cases reviewing government actions during national emergencies. Rejecting the conventional approach assessing deference as a matter of degree or as a condition present or not present, this Note offers a nu…. The piece makes for good reading; ….
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This is false. Owen M. As the war on terrorism continues, and along with it a heated debate over the scope of executive authority in times of national emergency, one important question deserves careful attention: how much power may Congress vest in the executive to address the crisis at hand …. Gang activity in the U.
Gang members undermine good order and discipline in the armed services and pose a serious threat to military and civilian communities. Congress recently responded to this threat by directing the Secretary of Defense to p….
Recently, few economic topics have received more political attention than the potential impact of Sovereign Wealth Funds SWFs. Until recently, scholarly and political attention to SWFs was almost exclusively focused on the impact these funds may have on Western countries. The little attention paid…. Much of that attention has been critical, with a particular focus on whether the U. Yet SWFs face significant domestic commercial and political pressure…. Counterterrorism officials increasingly seek to scrutinize conduct and behavior that they believe, however uncertainly, to be probative of terrorist activity.
When such conduct- based profiling specifically targets activity that is also expressive of Muslim identity, it ma…. War powers hang in a delicate balance, with conflicting statutes overlying contrasting constitutional prerogatives. A significant portion of the war on terror detainees who have been charged at Guantanamo have announced their intentions to dismiss their attorneys, to waive their right to be present at their trials, or to take both actions simultaneously so that their interests will not b…. A number of judge-made doctrines attempt to promote international comity by reducing possible tensions between the United States and foreign sovereigns.
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What deference is due the executive in foreign relations? Given the considerable constitutional authority and institutional virtues of the executive in this realm, some judicial deference is almost certainly appropriate. Indeed, courts currently defer to the executive in a…. But what if they are wrong?
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Is there any way to find out without taking a real risk with national security? Are the advocates of gays in the military prepared to say, fiat justitia, ruat caelum? And if so, do the rest of us, the majority of gays and straights alike who would prefer not to take such a risk with our lives, property, and freedom, have any say in the matter?
Or are the wishes of this minority of a minority to be paramount? They say they demand the "right" to make the supreme sacrifice for their country, and yet they are unwilling to make the presumably lesser sacrifice of being publicly reticent about their sexual behavior--or the sacrifice of not being in the military. It doesn't add up, somehow.
In fact, we do not know and we cannot know what our armed forces would be like under such conditions. The advocates of allowing open homosexuals to serve often cite the example of Israel or Britain, both of which have integrated homosexuals into their military services apparently without incident.
But they have done so in circumstances which do not allow for any objective assessment of the success or failure of the experiment. In Israel, all citizens must perform military service, which presumably affords much more scope for diluting the impact, if any, of the presence of homosexuals than would be the case in an all-volunteer army like that in the United States.
In Britain, the change came about in response to an order from the European Court of Human Rights, whose decrees have the force of law. For this reason, it would not be in the interest of any officer who valued his career prospects to remark upon any problems that the presence of gay soldiers, sailors, or airmen might be causing in their armed forces. Nor has the performance of the British Army in Iraq or the Royal Navy in the Persian Gulf been such as to render all suspicion of damage to morale, good order, and discipline ridiculous.
Yes Churchill, as first lord of the Admiralty, once spoke of the traditions of the Navy as being "rum, bum and the lash. This is not necessarily an argument for "Don't ask, don't tell," which is an attempt to make official what would be unofficial in any case. But if it is no longer possible to rely on the discretion, the decency, and tolerance of the individual soldier, then how much longer can we expect to rely on his courage and readiness to sacrifice himself for the greater good?
In Saving Private Ryan , when the word finally reaches the eponymous hero that his brothers have all been killed and that he is being withdrawn from his forward position as a precaution against his being killed likewise and so leaving his parents childless, his reply is to take in his combat buddies with a sweeping gesture and say: " These are my brothers. In order for any military unit to function under extreme conditions, this sense of brotherhood, which is naturally fostered by shared hardships, will always be encouraged by the military culture for the sake of the unit's combat effectiveness.
Nor is the notion of brotherhood merely metaphorical. There is a kind of brotherhood of comrades in arms that should be seen, because it is so often seen by the men themselves, as a species of brotherhood of the blood. Certainly it involves a form of love--in Greek philia --whose strength is essential to the purposes which evoke it. It is striking how seldom this love between men in battle is mentioned by the advocates of lifting the ban on open homosexuals' serving in the armed forces.
Characteristically, they argue on the basis of professionalism and the supposed irrelevance of "sexual orientation" to the job of soldiering. But is it irrelevant? Perhaps even critics of "Don't ask, don't tell" have an uneasy sense that they cannot simultaneously say--as much of the commentary about the film Brokeback Mountain seemed to suggest--that the homosexual relationship is simply friendship carried to a higher power and, as the advocates for gay marriage imply, that it is exactly the same as the erotic love between men and women.
Those who are not homosexuals have always resisted any simple equivalence between sexual love and friendship, not out of bigotry but at least partly because to grant it would be an abdication of their own right to love. Characteristically, the robust heterosexual, if told that close friendship with another man is only a degree away from homosexual relations with him, will back off the friendship.quicarnara.ml
National Defense and the Cyber Domain | The Heritage Foundation
He knows, or believes, what it seems the homosexual cannot know or believe, or doesn't want to know or believe, namely that the two sorts of love are different in kind and not just in degree. The resistance from military men to the idea of gays in the military seems to be due to this perception. In their minds there simply is no continuity between brotherly and erotic love. Indeed, the power of the former would be not just diminished but destroyed by any confusion of the two.
When that other kind of love, eros , gets mixed up with the very different kind of love appropriate to siblings or parents and children, we call the result incest, which has been banned, often with extreme prejudice, in almost all cultures known to us. This is because eros is so strong that it corrupts and destroys the other kinds of love which, accordingly, simply cannot coexist with it. Eros is the gray squirrel, the kudzu, the zebra mussel of emotions: When it moves into an environment, it crowds out all its competitors.
Of course it will now be said by our new breed of political moralizers that I have compared homosexual love to incest, thus identifying myself--assuming that I had not already done so--as a bigot. I have done no such thing. I have said that homosexual love, like heterosexual love, must admit of certain human relationships, based on other, nonsexual kinds of love, where its presence would corrupt and destroy those more delicate types of love.