This Essay is intended for Congressional committee staff-whether employed by the committee or by members assigned to the committee-if they are called to review an administration legislative proposal to amend or repeal The Posse Comitatus Act ("The Act").2 It will be in two parts: background (to ensure that you and your members understand the statute's origins and implications); and separate Sections on expected issues and positions that will be asserted, or should be explored, as you prepare for testimony by supporters and opponents of the Bill.
In recent years, legal commentators have begun to write on women in war: usually as the civilian victims of belligerent forces, sometimes as military victims of discrimination within their own armed forces. Very little has been written about women as belligerents. What has been written does not focus on the legal problems conventional forces face when women are "unprivileged belligerents"' who fail to comply with law of war requirements for combatant status. These problems can become acute when conventional forces are engaged in "Small Wars" where unarmed women often serve as auxiliaries to their unconventional opponents. Although legal sources have been remarkably silent about these problems, a number of examples are available. I have selected two involving unarmed women: one from Northern Ireland involving the British Army, and one from Somalia involving the American Army.
This paper will outline the historical development and current state of the Anglo-American law regarding the criminal and civil liability of military force when they are used in aid of the civil forces in the hope that it will elicit two kind of response - criticism of my thesis, and research by individuals into this timely and difficult problem.
This article offers an approach, not an answer. It concludes that any of the three branches of government could permit women to serve in combat units. Women have been formally barred from serving in combat ships or aircraft by a 1948 law-the Women's Armed Services Integration Act. Because the sponsors of that legislation concluded that it was impossible to distinguish combat and noncombat roles in the Army, the Secretary of that service was given discretion to designate combat units which would be filled only by men. Congress could change the law. The judiciary could decide that the law, or the Army's exercise of discretion, was unconstitutionally discriminatory. The President could issue an executive order ameliorating the law's application. The nature of the inquiry into whether there should be a change, and the criteria applied, will differ depending on the branch of government involved. While that proposition is unremarkable, the distinction seems to have escaped the attention of most proponents and opponents of the combat exclusion laws. Although the considerations that should apply can only be outlined, the debate is more complex than is commonly suggested.
The focus of this article is on the role of the legal system in resolving disputes regarding the accommodation of religious beliefs in the armed forces. Generally, these disputes arise when an individual's religious sensibilities make claims upon his conscience that cannot be reconciled with the demands imposed by military discipline. Although the believer may simply refuse to serve, a more difficult problem arises when the military believer does not or cannot claim the status of a conscientious objector, but seeks legal protection for his religiously motivated behavior while remaining in the service. Such a claim of protection may be asserted in either the military or civilian legal system. Basically, the legal principles upon which these systems rely in adjudicating such claims can be envisaged as forming a double helix. Although both strands of principles are derived from the Constitution, the United States Supreme Court has been unable to formulate a doctrine which links the two by simultaneously accommodating the individual rights of the service member with society's collective need for an armed force whose response to authority must be immediate and unreserved. This dilemma is inherent in any constitutional polity which refuses to abjure civilian judicial control over the military This paper will examine the military and civilian strands separately, comparing their synchronic development and observing that certain trends in military jurisprudence could ameliorate the kind of problems raised by a case similar to McCord's. Research suggests that although instances of conflict between religious sensibility and military discipline are not uncommon, such conflicts are raised and resolved in the military without reference to the constitutional dimensions of the conflict. In conclusion, the paper demonstrates that neither strand of legal principles is responsive to the needs of either the individual or society, and suggests that the federal courts are the least preferred fora for adjudicating such disputes.
Each year, hundreds of federal attorneys brief and argue criminal cases before courts of appeal, but the only federally- sponsored training programs in appellate advocacy are devoted primarily to civil appeals. Conversations with members of the staff of the Practicing Law Institute and the Federal -and American Bar Associations established that short courses in appellate litigation skills are not routinely offered. Therefore, we can conclude that most government attorneys involved in criminal appeals learn or improve their appellate litigation skills on the job. This article is about their training. While there is a wealth of legal literature on appellate advocacy as a skill, none of it is designed for the "in-house" instructor and, because on-thejob training has received little attention from legal educators, it is difficult to find materials describing successful training programs.
Until the passage of the Federal Medical Care Recovery Act, which became effective in 1963, the Federal Government was not able to recover the expense of medical services extended to one who was entitled to those services when the injury was caused by the negligence of a third-party tortfeasor. The act now gives the Government the right to join in the suit of the injured party or to proceed on its own. Through co-operation with the injured parties' attorneys, the Government has recouped millions of dollars.
Soon after the inception of the Hospital Recovery Claims Program, Government agencies concluded that the most effective means of asserting and collecting claims under the provisions of 42 U.S.C. 2651-3 would be through the injured party's attorney. Since approximately 95% of all person injury claims are settled prior to trial, the question of who could sue if the claim could not be settled amicably remained unresolved. At the end of the first year all agencies were advised to request the plaintiff's lawyers to include the Government's claim as an item of special damages if suit were filed. Within a few months questions arose as to the injured party's right to assert the Government's claim and the necessity for the United States to be a party to the suit.
This book fills an important gap in the literature on terrorism. It is designed as a case book, including seminal cases which set out the fundamental rules or principles applicable when circumstances are sufficiently intense to warrant use of the term terrorism'. The United Kingdom is used as a primary source because English law regulating political violence has been continually refined in the 300 years since the Glorious Revolution and has served as a paradigm for other countries that derive their jurisprudence from that experience. Ireland represents what might be called the post-revolutionary variation. Its laws were drafted and are administered by rebels and the children of rebels, who clearly recall the successes and failures of the British campaigns in their country, and who continue to observe the repercussions of pacification efforts in Northern Ireland. Because there are fewer Irish court decisions and because Irish law in many instances mirrors the law of the United Kingdom, only that Irish material which adds a distinctive perspective is included. The United States presents a third, peaceful model and a country which is increasingly confronted by terrorist acts. The themes addressed in this book revolve around legal efforts to reconcile security considerations with those liberal democratic values which the nations consider to be their constitutional heritage. Part I looks at the treatment of aliens - both those who seek admission and those admitted whom the state decides to expel. Part II examines selected problems involving citizens' rights, and the extent (if any) to which these rights can be impaired by anti-terrorist measures. Part III focuses on these institutional restraints on governmental behavior derived from legislation or from common law. ; https://scholarship.law.edu/fac_books/1078/thumbnail.jpg
Part I of this Article summarizes the relevant provisions of the Tucker Act, and examines courts' interpretations of whether a district court had jurisdiction over a claim when a potential judgment exceeded $10,000. This Article suggests that, over time, traditional Tucker Act jurisdiction has been distorted by the appearance of a new kind of plaintiff' seeking "structural reform" rather than the kinds of compensation envisioned by the Act. This Article also suggests that Tucker Act jurisdiction has been distorted by two congressional actions: the creation of the judgment fund; and amendments to the Administrative Procedure Act. These congressional actions could be construed to extend district court jurisdiction over claims for money damages. As a result, the distinction between Tucker and non- Tucker Act remedies has been blurred. Part II of this Article explicates the case law before and after the passage of the APA and its relevant amendments. This Article notes how, in the 1980's, the Department of Justice (DOJ) began to assert that state suits against the Federal Government seeking reimbursement of grant-in-aid funds should be treated as Tucker Act claims and tried in the United States Claims Court, rather than as non-Tucker Act claims to be tried in the district courts. Although the DOJ achieved some measure of success, Judge Bork, in a masterful display of judicial legerdemain, offered alternative reasoning which became the basis for the Bowen decision. This alternative was superficially attractive but intrinsically false and created the impression that Bowen had diminished the traditional jurisdiction of the Claims Court and Court of Appeals for the Federal Circuit. Part III discusses and analyzes the Bowen case, outlining its procedural history, and highlighting the United States Supreme Court's efforts to distinguish Bowen from the "run of the mill" Tucker Act suits. In part IV, this Article offers alternative interpretations of the Bowen ruling. Finally, part V of this Article advances the "preferred solution" and suggests how the Bowen decision can be reconciled with a century of case law, thereby avoiding the kind of judicial nihilism evidenced in this Article's introductory quotation.
