Category Archives: The Constitution

Paved with Good Intentions?: Civil-Military Norms, Breaches, and Why Mindset Matters

This essay argues that a complete scrutiny of norm-breaking and “crises” within strategic-level American civil-military relationships ought to consider more than the impact of the breach or the value of the actor’s apparent justification for transgression.

Rather, considering how an actor understood the norm, and whether he or she accepted it before breaching it, uncovers two important factors that have been left under-examined in civil-military norms and relations literature: whether that norm ought to be considered the norm any longer, and whether there is a more nuanced way to determine an actor’s culpability or blameworthiness for the violation.

Exploring the willfulness and mindset of the individual parties, who seem to breach norms or fail to establish a baseline of workable mutual expectations, is a step in the direction of understanding the peculiar character of that choice beyond its effect and the actor’s reasoning.

This essay proposes that we borrow the scalable legal concept of “intent” from criminal law—described as “the degree of informed intentionality” of a civil-military relationship actor. Informing this proposal is a look at some recent norm-busting events “ripped from the headlines.”

Requiem for Korematsu?

Stephen Dycus reviews Professor Eric K. Yamamoto’s timely book In the Shadow of Korematsu: Democratic Liberties and National Security, published just weeks before the Supreme Court decided Trump v. Hawaii. Dycus draws out the book’s core themes, highlighting Yamamoto’s analysis of the Korematsu decision and its continued relevance in American jurisprudence. The review concludes with a discussion of Yamamoto’s proposed process for judicial review in cases that involve both national security and civil liberties.

Replacing the “Sword of War” with the “Scales of Justice”: Henfield’s Case and the Origins of Lawfare in the United States

The United States government’s 1793 prosecution of Gideon Henfield represents the first instance of the lawfare engaged in by the fledgling government. Over the course of the decades that followed, criminal prosecution became a default selection for addressing national security threats. This article examines how the Washington Administration utilized law as a weapon to defend itself from the British and French and set the precedent for using prosecutions to achieve national security objectives.

Replacing the “Sword of War” with the “Scales of Justice”: Henfield’s Case and the Origins of Lawfare in the United States

Before Privacy, Power: The Structural Constitution & the Challenge of Mass Surveillance

The rich legal literature that has grown up to assess the constitutionality of bulk communications collection by the government has focused overwhelmingly—and understandably—on the challenge such programs pose to particular claims of individual right against the state, yet attempting to describe what seems troubling about bulk collection in terms of individual rights alone has significant doctrinal and conceptual limits.

The Covert Action Statute: The CIA’s Blank Check?

MAJ Peter Combe argues that the covert action statute prohibits the Central Intelligence Agency from violating self-executing treaties to which the United States is party, as well as non-self-executing treaties and customary international law implemented by statute, but it provides domestic legal authority to violate non-self-executing treaties and customary international law that have not been implemented through legislation by Congress. This application of the covert action statute in practice is illuminated through a case study of the legal issues surrounding the Osama bin Laden raid.