forthcoming scholarship: Nachbar on “Rule of Law” in military doctrine and operations

“Defining the Rule of Law Problem”

The Green Bag, Vol. 6, No. 2D, p. 303, 2009
University of Virginia Public Law and Legal Theory Working Paper Series Working Paper No. 125

THOMAS B. NACHBAR, University of Virginia School of Law
Email: tnachbar

This article is based on a chapter written for The Rule of Law Handbook: A Practitioner’s Guide, a handbook used as a text at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia, and as a reference for judge advocates worldwide.

The paper considers the recent explosion in legal development activity undertaken by the U.S. government in the context of the military interventions in Afghanistan and Iraq. Those programs, frequently lumped together under the title ‘rule of law,’ have in turn led to a flurry of activity to define the ‘rule of law’ in order to provide some guidance to those programs.

The paper highlights the need to define the purpose of the definition before seeking a definition and discusses how recently adopted definitions of the rule of law in U.S. military doctrine necessarily affect not only ‘rule of law’ programs but also the full spectrum of operations undertaken by U.S. forces.

By Robert M. Chesney

Robert M. Chesney is Charles I. Francis Professor in Law at UT-Austin School of Law. Chesney is a national security law specialist, with a particular interest in problems associated with terrorism. Professor Chesney recently served in the Justice Department in connection with the Detainee Policy Task Force created by Executive Order 13493. He is a member of the Advisory Committee of the American Bar Association's Standing Committee on Law and National Security, a senior editor for the Journal of National Security Law & Policy, an associate member of the Intelligence Science Board, a non-resident senior fellow of the Brookings Institution, a term member of the Council on Foreign Relations, and a member of the American Law Institute. Professor Chesney has published extensively on topics ranging from detention and prosecution in the counterterrorism context to the states secrets privilege. He served previously as chair of the Section on National Security Law of the Association of American Law Schools and as editor of the National Security Law Report (published by the American Bar Association's Standing Committee on Law and National Security). His upcoming projects include two books under contract with Oxford University Press, one concerning the evolution of detention law and policy and the other examining the judicial role in national security affairs.

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