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Many of the rationales for special deferenceexpertise, embarrassment, uniformity, and secrecy
have, at their core, the assumption that the courts involvement in foreign affairs will risk
serious collateral consequences in international relations that courts cannot anticipate, cannot
fully understand, and do not have the power to adequately address.307 There are collateral
consequences for court decisions in the domestic context as well. But the distinction drawn in
foreign affairs reflects the tragic side of realismthat the world is inherently an unstable and
dangerous place, an arena for clashes between great powers and under constant threat of war. In
an international system in which the balance of power is precarious and preserved only through
delicate maneuvering by statesmen, the courts involvement could risk provoking another great
power and undermining these efforts. But once again, this justification, taken to its logical
conclusion, requires complete deference. If courts truly lack any sense for the collateral
consequences of their foreign affairs decisions, they cannot competently weigh those
consequences against competing constitutional values. Suppose that the U.S. government
advances a novel interpretation of antiterrorism statutes in order to prosecute a suspected
terrorist whose release, the government insists, would create instability in a key U.S. ally in the
Middle East. Under the collateral consequences justification, the court must defer to the
governments interpretation. This would eviscerate entirely the courts statutory interpretation
role whenever there is a claimed foreign affairs exigency.
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Georgetown Journal of Law & Public Policy (Vol. 7, No. 1, p. 373) Available Online to Subscribing Institutions via LexisNexis)
IV. WAR POWERS IN THE FOURTH GENERATION OF WARFARE
A. The Emergence of Non-State Actors
Even as the quantity of nation-states in the world has increased dramatically since the end of World War II, the institution
of the nation-state has been in decline over the past few decades. Much of this decline is the direct result of the waning of
major interstate war, which primarily resulted from the introduction of nuclear weapons.122 The proliferation of nuclear
weapons, and their immense capacity for absolute destruction, has ensured that conventional wars remain limited in
scope and duration. Hence, "both the size of the armed forces and the quantity of weapons at their disposal has declined
quite sharply" since 1945.123 At the same time, concurrent with the decline of the nation-state in the second half of the
twentieth century, non-state actors have increasingly been willing and able to use force to advance their causes. In
contrast to nation-states, who adhere to the Clausewitzian distinction between the ends of policy and the means of war to
achieve those ends, non-state actors do not necessarily fight as a mere means of advancing any coherent policy. Rather,
they see their fight as a life-and-death struggle , wherein the ordinary terminology of war as an instrument of policy
breaks down because of this blending of means and ends. 124 It is the existential nature of this struggle and the
disappearance of the Clausewitzian distinction between war and policy that has given rise to a new generation of
warfare. The concept of fourth-generational warfare was first articulated in an influential article in the Marine Corps
Gazette in 1989, which has proven highly prescient. In describing what they saw as the modem trend toward a new phase
of warfighting, the authors argued that:
In broad terms, fourth generation warfare seems likely to be widely dispersed and largely undefined; the
distinction between war and peace will be blurred to the vanishing point. It will be nonlinear, possibly to the point
of having no definable battlefields or fronts. The distinction between "civilian" and "military" may disappear.
Actions will occur concurrently throughout all participants' depth, including their society as a cultural, not just a
physical, entity. Major military facilities, such as airfields, fixed communications sites, and large headquarters
will become rarities because of their vulnerability; the same may be true of civilian equivalents, such as seats of
government, power plants, and industrial sites (including knowledge as well as manufacturing industries). 125
It is precisely this blurring of peace and war and the demise of traditionally definable battlefields that provides the impetus
for the formulation of a new theory of war powers. As evidenced by Part M, supra, the constitutional allocation of war
powers, and the Framers' commitment of the war power to two co-equal branches, was not designed to cope with the
current international system, one that is characterized by the persistent machinations of international terrorist
organizations , the rise of multilateral alliances , the emergence of rogue states , and the potentially wide
proliferation of easily deployable weapons of mass destruction , nuclear and otherwise.
B. The Framers' World vs. Today's World
The Framers crafted the Constitution, and the people ratified it, in a time when everyone understood that the state
controlled both the raising of armies and their use. Today, however, the threat of terrorism is bringing an end to the era of
the nation-state's legal monopoly on violence, and the kind of war that existed before-based on a clear division between
government, armed forces, and the people-is on the decline. 126 As states are caught between their decreasing ability to
fight each other due to the existence of nuclear weapons and the increasing threat from non-state actors, it is clear that the
Westphalian system of nation-states that informed the Framers' allocation of war powers is no longer the order of the
day. 127 As seen in Part III, supra, the rise of the modem nation-state occurred as a result of its military effectiveness and
ability to defend its citizens. If nation-states such as the United States are unable to adapt to the changing circumstances of
fourth-generational warfare-that is, if they are unable to adequately defend against low-intensity conflict conducted by
non-state actors-"then clearly [the modem state] does not have a future in front of it.' 128
The challenge in formulating a new theory of war powers for fourth generational warfare that remains legally justifiable
lies in the difficulty of adapting to changed circumstances while remaining faithful to the constitutional text and the
original meaning. 29 To that end, it is crucial to remember that the Framers crafted the Constitution in the context of the
Westphalian system of nation-states. The three centuries following the Peace of Westphalia of 1648 witnessed an
international system characterized by wars, which, "through the efforts of governments, assumed a more regular,
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interconnected character."' 130 That period saw the rise of an independent military class and the stabilization of military
institutions. Consequently, "warfare became more regular, better organized, and more attuned to the purpose of war-that
is, to its political objective."'1 3 ' That era is now over. Today, the stability of the long-existing Westphalian international
order has been greatly eroded in recent years with the advent of international terrorist organizations, which care nothing
for the traditional norms of the laws of war.
This new global environment exposes the limitations inherent in the interpretational methods of originalism and
textualism and necessitates the adoption of a new method of constitutional interpretation. While one must always be
aware of the text of the Constitution and the original understanding of that text, that very awareness identifies the extent to
which fourth-generational warfare epitomizes a phenomenon unforeseen by the Framers, a problem the constitutional
resolution of which must rely on the good judgment of the present generation. 13 Now, to adapt the constitutional
warmarking scheme to the new international order characterized by fourth-generational warfare, one must understand the
threat it is being adapted to confront.
C. The Jihadist Threat
The erosion of the Westphalian and Clausewitzian model of warfare and the blurring of the distinction between the means
of warfare and the ends of policy, which is one characteristic of fourth-generational warfare, apply to al-Qaeda and other
adherents of jihadist ideology who view the United States as an enemy. An excellent analysis of jihadist ideology and its
implications for the rest of the world are presented by Professor Mary Habeck. 133 Professor Habeck identifies the
centrality of the Qur'an, specifically a particular reading of the Qur'an and hadith (traditions about the life of Muhammad),
to the jihadist terrorists. 134 The jihadis believe that the scope of the Qur'an is universal, and "that their interpretation of
Islam is also intended for the entire world, which must be brought to recognize this fact peacefully if possible and through
violence if not."' 135 Along these lines, the jihadis view the United States and her allies as among the greatest enemies
of Islam : they believe "that every element of modern Western liberalism is flawed, wrong, and evil " because the basis
of liberalism is secularism. 136 The jihadis emphasize the superiority of Islam to all other religions, and they believe that
"God does not want differing belief systems to coexist."' 37 For this reason, jihadist groups such as al-Qaeda "recognize
that the West will not submit without a fight and believe in fact that the Christians, Jews, and liberals have united against
Islam in a war that will end in the complete destruction of the unbelievers.' 138 Thus, the adherents of this jihadist
ideology, be it al-Qaeda or other groups, will continue to target the United States until she is destroyed. Their
ideology demands it. 139
To effectively combat terrorist groups such as al-Qaeda, it is necessary to understand not only how they think, but also
how they operate. Al-Qaeda is a transnational organization capable of simultaneously managing multiple operations all
over the world."14 It is both centralized and decentralized: al-Qaeda is centralized in the sense that Osama bin Laden is
the unquestioned leader, but it is decentralized in that its operations are carried out locally, by distinct cells."4 AI-Qaeda
benefits immensely from this arrangement because it can exercise direct control over high-probability operations, while
maintaining a distance from low-probability attacks, only taking the credit for those that succeed. The local terrorist cells
benefit by gaining access to al-Qaeda's "worldwide network of assets, people, and expertise."' 42 Post-September 11
events have highlighted al-Qaeda's resilience. Even as the United States and her allies fought back, inflicting heavy
casualties on al-Qaeda in Afghanistan and destroying dozens of cells worldwide, "al-Qaeda's networked nature allowed it
to absorb the damage and remain a threat." 14 3 This is a far cry from earlier generations of warfare, where the decimation
of the enemy's military forces would generally bring an end to the conflict.
D. The Need for Rapid Reaction and Expanded Presidential War Power
By now it should be clear just how different this conflict against the extremist terrorists is from the type of warfare that
occupied the minds of the Framers at the time of the Founding. Rather than maintaining the geographical and political
isolation desired by the Framers for the new country, today's United States is an international power targeted by
individuals and groups that will not rest until seeing her demise. The Global War on Terrorism is not truly a war within the
Framers' eighteenth-century conception of the term, and the normal constitutional provisions regulating the division of
war powers between Congress and the President do not apply . Instead, this "war" is a struggle for survival and
dominance against forces that threaten to destroy the United States and her allies, and the fourth-generational nature of the
conflict, highlighted by an indiscernible distinction between wartime and peacetime, necessitates an evolution of
America's traditional constitutional warmaking scheme.
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As first illustrated by the military strategist Colonel John Boyd, constitutional decision-making in the realm of war powers
in the fourth generation should consider the implications of the OODA Loop: Observe, Orient, Decide, and Act. 44 In the
era of fourth-generational warfare, quick reactions, proceeding through the OODA Loop rapidly, and disrupting the
enemy's OODA loop are the keys to victory. "In order to win," Colonel Boyd suggested, "we should operate at a faster
tempo or rhythm than our adversaries." 145 In the words of Professor Creveld, "[b]oth organizationally and in terms of
the equipment at their disposal, the armed forces of the world will have to adjust themselves to this situation by changing
their doctrine, doing away with much of their heavy equipment and becoming more like police."1 46 Unfortunately, the
existing constitutional understanding, which diffuses war power between two branches of government, necessarily (by
the Framers' design) slows down decision- making. In circumstances where war is undesirable (which is, admittedly,
most of the time, especially against other nation-states), the deliberativeness of the existing decision-making process is a
positive attribute.
In America's current situation, however, in the midst of the conflict with al-Qaeda and other international terrorist
organizations, the existing process of constitutional decision-making in warfare may prove a fatal hindrance to
achieving the initiative necessary for victory. As a slow-acting, deliberative body, Congress does not have the ability to
adequately deal with fast-emerging situations in fourth-generational warfare. Thus, in order to combat
transnational threats such as al-Qaeda, the executive branch must have the ability to operate by taking offensive
military action even without congressional authorization, because only the executive branch is capable of the swift
decision-making and action necessary to prevail in fourth-generational conflicts against fourth generational
opponents.
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their institutional competence. Therefore, courts should grant a higher level of deference to executive branch determinations in deciding whether to grant a temporary
restraining order or a preliminary injunction in foreign affairs matters. Under the super-strong Curtiss-Wright deference scheme, the court should accept the executive
branch interpretation unless Congress has specifically addressed the matter and the issue does not fall within the President's textually-specified Article I powers.
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Military effectiveness is key to deter large-scale aggression and prevent conflict escalation
Spencer 3 (Jack, Senior Defense Policy Analyst @ Heritage, "Focusing Defense Resources to Meet National Security
Requirements," 3/21, www.heritage.org/Research/NationalSecurity/bg1638.cfm)
Be prepared to fight with little or no warning in unanticipated places. The emergence of global communications, advances
in technology, and the globalization of terrorism provide many opportunities for surprise attacks against the United States
and its interests. Maintaining the ability to fight and win wars in diverse situations and environments can discourage
many of America's enemies from hostile acts. Maintain adequate capability to deter aggression against America's allies.
America faces enduring threats beyond terrorism, as demonstrated by North Korea's nuclear weapons program. There are
nations in every region of the world that threaten America's vital interests in the near term. Assuring stability in those
regions and protecting U.S. interests requires the ability to defeat any nation or group that threatens America's allies,
which itself provides effective deterrence against large-scale aggression. This should include both conventional forces
and other capabilities such as an effective ballistic missile defense and reliable nuclear forces. The Administration should
take every step to strengthen its important alliances and be ready to respond forcefully and immediately to aggression
against America's allies.
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ambiguities in federal statutes should be construed by judges, rather than by the Pr esident and those who operate under him. To say this is not to take a stand on th e
question whether the President can act on his own. It is merely to acknowledge that legislation often grants the executive some discretion to act rapidly
in response to perceived threat sand hence the increase in executive power, usually made possible by statutes, has reflect ed a recognition by Congress itself
of this pragmatic point. 181 In these circumstances, deference to the executives views on the meaning of ambiguous statutes , rather than invocation
of the comity principles, is a step that seems at once modest and a bit late.
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be aware that tinkering with national security decisions of the POTUS unless clearly necessary to counterbalance an
indubitable violation of the text of the Constitutionmay lead to unforeseen negative second-order consequences in
the ability of the POTUS (with or without the help of Congress) to preserve, protect, and defend the Nation.22
B. Geopolitical Strategic Considerations Bearing on Judicial Interpretation
Before the United States Supreme Court Justices form an opinion on the legality of national security decisions by the
POTUS, they should immerse themselves in judicially-noticeable facts concerning what national security expert, Bruce
Berkowitz, in the subtitle of his recent book, calls the challengers, competitors, and threats to Americas future.23 Not
that the Justices need to become experts in national security affairs,24 but every Supreme Court Justice should be aware
of the following five basic national security facts and conceptions before sitting in judgment on presiprudential national
security determinations.
(1) National security policy . . . is harder today because the issues that are involved are more numerous and
varied . The problem of the day can change at a moments notice.25 While [y]esterday, it might have been
proliferation; today, terrorism; tomorrow, hostile regional powers 26, the twenty-first century reality is that [t]hreats
are also more likely to be intertwinedproliferators use the same networks as narcotraffickers, narco-traffickers support
terrorists, and terrorists align themselves with regional powers.27
(2) Yet, as worrisome as these immediate concerns may be, the long-term challenges are even harder to deal
with, and the stakes are higher. Whereas the main Cold War threatthe Soviet Unionwas brittle, most of the potential
adversaries and challengers America now faces are resilient.28
(3) The most important task for U.S. national security today is simply to retain the strategic advantage. This
term, from the world of military doctrine, refers to the overall ability of a nation to control, or at least influence, the course
of events.29 Importantly, [w]hen you hold As further serious preparation for engaging in the jurisprudence of American
national security presiprudence in hotly contested cases and controversies that may end up on their docket, our Supreme
Court Justices should understand that, as Walter Russell Mead pointed out in an important essay a few years ago,35 the
average American can be understood as a Jacksonian pragmatist on national security issues.36 Americans are determined
to keep the world at a distance, while not isolating ourselves from it completely. If we need to take action abroad, we want
to do it on our terms.37 Thus, recent social science survey data paints a picture of a country whose practical people take
a practical approach to knowledge about national security. Americans do not bother with the details most of the time
because, for most Americans, the details do not matter most the time.38 Indeed, since the American people do know the
outlines of the big picture and what we need to worry about [in national security affairs] so we know when we need to pay
greater attention and what is at stake. This is the kind of knowledge suited to a Jacksonian.39
Turning to how the Supreme Court should view and interpret American presidential measures to oversee national security
law and policy, our Justices should consider a number of important points. First, given the robust text, tradition,
intellectual history, and evolution of the institution of the POTUS as the American national security sentinel,40 and the
unprecedented dangers to the United States national security after 9/11,41 national security presiprudence should be
accorded wide latitude by the Court in the adjustment (and tradeoffs) of trading liberty and security.42 Second, Justices
should be aware that different presidents institute changes in national security presiprudence given their unique
perspective and knowledge of threats to the Nation.43 Third, Justices should be restrained in second-guessing the
POTUS and his subordinate national security experts concerning both the existence and duration of national security
emergencies and necessary measures to rectify them. During emergencies, the institutional advantages of the executive
are enhanced;44 moreover, [b]ecause of the importance of secrecy, speed, and flexibility , courts, which are slow,
open, and rigid , have less to contribute to the formulation of national policy than they do during normal times.45
Fourth, Supreme Court Justices, of course, should not give the POTUS a blank checkeven during times of claimed
national emergency; but, how much deference to be accorded by the Court is always a hard question and should be a
function of the scale and type of the emergency.46 Fifth, the Court should be extraordinarily deferential to the
POTUS and his executive subordinates regarding questions of executive determinations of the international laws of war
and military tactics. As cogently explained by Professors Eric Posner and Adrian Vermeule,47 the United States should
comply with the laws of war in its battle against Al Qaedaand I would argue, other lawless terrorist groups like the
Talibanonly to the extent these laws are beneficial to the United States, taking into account the likely response of other
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states and of al Qaeda and other terrorist organizations,48 as determined by the POTUS and his national security
executive subordinates.
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The importance of limitations on judicial activities during wartime may be inferred from the allocation of powers under our
constitutional scheme. The war powers ... invest "the President, as Commander in Chief, with the power to wage war which Congress
has declared, and to carry into effect all laws passed by Congress for the conduct of war and for the government and
regulation of the Armed Forces, and all laws defining and punishing offences against the law of nations, including those
which pertain to the conduct of war." These powers include the authority to detain those captured in armed struggle. These powers
likewise extend to the executive's decision to deport or detain alien enemies during the duration of hostilities, and to confiscate or
destroy enemy property. Article III contains nothing analogous to the specific powers of war so carefully enumerated in
Articles I and II. "In accordance with this constitutional text, the Supreme Court has shown great deference to the political
branches when called upon to decide cases implicating sensitive matters of foreign policy, national security, or military affairs." The
reasons for this deference are not difficult to discern. Through their departments and committees, the executive and legislative
branches are organized to supervise the conduct of overseas conflict in a way that the judiciary simply is not. The Constitution's
allocation of the warmaking powers reflects not only the expertise and experience lodged within the executive, but also the more
fundamental truth that those branches most accountable to the people should be the ones to undertake the ultimate protection and to
ask the ultimate sacrifice from them. Thus the Supreme Court has lauded "[t]he operation of a healthy deference to legislative and
executive judgments in the area of military affairs." Rostker v. Goldberg (1981). The deference that flows from the explicit
enumeration of powers protects liberty as much as the explicit enumeration of rights. The Supreme Court has underscored
this founding principle: "The ultimate purpose of this separation of powers is to protect the liberty and security of the
governed." Metro. Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc. (1991). Thus, the textual
allocation of responsibilities and the textual enumeration of rights are not dichotomous, because the textual separation of
powers promotes a more profound understanding of our rights. For the judicial branch to trespass upon the exercise of the
warmaking powers would be an infringement of the right to self-determination and self-governance at a time when the
care of the common defense is most critical. This right of the people is no less a right because it is possessed collectively.
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Hudson, 1999 (Major Walter M, Judge Advocate General's Corps of the United States Army and Instructor of the
Criminal Law Department, Military Law Review Volume 159, March, l/n)
By granting the elected branches plenary and command power over the military, the Constitution links military control to the
democratic will and the democratic process. Because the people will feel the burden of war, the elected branches can best respond to
that will.223 Furthermore, in granting power to the elected branches to control the military, the Constitution acknowledges that the elected branches grant a
degree of legitimacy to military policy that courts cannot. These elected branches can best reflect and respond to the societal
consensus, a particularly relevant and important concern when dealing with national security.224 Of the three branches, the judiciary has
the least competence to evaluate the militarys formation, training, or command . It has, as one court stated, no Armed Services Committee,
Foreign Relations Committee, Department of Defense, or Department of State nor does it have the same access to intelligence and testimony on
military readiness as does Congress or the President .225 The Supreme Court has thus repeatedly cited its own lack of competence to
evaluate military affairs.226 To analyze the oft-criticized judicial deference to military matters, it is important to understand the structural differences
between the ability of the elected branches and the courts to determine policy. The elected branches use regulatory decision making to
determine policy. Regulatory decision-making, which is the creation of administrative policy through internal-rule formation, is a far more efficient means
of policy making than adjudicated decisions.227 There are several problems with adjudication as a means of rule making. Adjudication is more
costly and more time consuming. Years and millions of dollars can be spent in litigating one issue that involves one individual .228
Adjudication concerns itself with an individual remedy based upon a small set of controverted facts that are highly contextual and may or may not
be applicable to a larger class of individuals.229 Furthermore, adjudication sets up elaborate procedures according to its ultimate goal-to determine whether a
particular individual should prevail in a particular case.23o Dissenters, in particular Justice Brennan, have asserted that the Court decides issues that are far more
technically complicated than adjudicating rather straightforward rules on di~cipline.~~ Yet that argument does not address rules formation in an administrative, as
opposed to an adjudicative, system. Military policy-making is, by its nature, meant to do precisely what administrative policy-making does: allocate rights,
benefits, and sanctions, among
large groups using consistent standards.232 What makes military policy making along administrative rule-making lines even
militarys primary concern is ensuring military discipline and combat effectiveness of units, rather than
focusing primarily on individuals themselves. Applying consistent and predetermined norms among large groups is what
administrative rule making is best equipped to do.233 Where Brennans argument may appear to be the most persuasive is where the potential penalties
more advantageous is that the
cut into the interests that the adjudicative process is best suited to protect-namely, constitutional protections. In dealing with constitutional protections, individual rights
often trump majority concerns. Discerning whether individuals should be granted these protections may not be particularly complex, on the surface.234 When viewing
the grant of constitutional protections in relation to the militarys goal-successful combat operations-this argument loses force. This is because simplicity as defined in
civilian contexts often does not have the same meaning in the military context. Clausewitz, the Prussian general and author of the military classic, On War, once
famously stated: Everything in war is very simple, but the simplest thing is Clausewitz terms all the uncertainties and problems that accompany wartime operations as
Friction can be defined as the realm of uncertainty and chance, even more [is] it the realm of suffering, confusion, exhaustion, and fear237 that accompanies military
wartime operations. All these exist to a much higher degree in war, because, as Clausewitz points out, in war, not only is chance and uncertainty a con- ~tant,*~* but
also one side is trying to impose its will on its opponent, which is an animate object that reacts.239 In other words, in war, you are seeking to overcome an opponent
who is reacting to (and may be anticipating) your movements, who is trying not only to defeat but to destroy you, and who may not be constrained by your own laws,
customs, and behavior. It is not thus simply the lack of judicial competence in military affairs, but the effects that the lack of competence may have that is
an additional friction in the military environment. The problem in applying a standard of review similar to the kind used for civilian society is not
just that the court may err, but the ramifications of such an error given the uncertainty of conflict.240 An error in military policy making
could impede military effectiveness and thereby jeopardize national security.241 These judicial decisions put the courts squarely into
the political arena. Judges unwittingly become strategists-unelected and ill-equipped officials deciding matters of potentially
ultimate importance. Judicial deference, therefore, is generally appropriate to military decision- making, and in particular, a unit commanders decision-making on
extremism. Extremisms disproportionate impact on the community where it occurs is an impact that can only be magnified in a military unit. The best way to
appreciate that impact is to look at the gravest danger posed by racial extremists-the violent hate crime. If the courts rely solely on the statistics that compare the few
numbers of bias crimes committed in relation to total crimes, they may be misled about the effect on good order and discipline.242 The courts may not be aware of the
totality of information about extremist hate crimes. The vast majority of bias-oriented crimes are crimes against persons, not property. These crimes are also more likely
to involve physical assault than non-bias crimes.243 Usually, at least four or more individuals commit them.244 The median age group is among young Loosely
associated individuals, not organized extremist groups, commit most hate crimes.246 Furthermore, the most explosive element about the crimes is not necessarily the
criminal act. Rather, the race or bias motivation can cause a community to polarize and even to explode.247 This impact is essential to the militarys need for judicial
deference to extremist policies-at both the local commander policy level and the Army policy level.
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v. Clapper reveals a
fundamental and dangerous misunderstanding of the challenges facing the nation today. There were no serious foreign
terrorist attacks against the United States in the 1950s through the 70s; the only true threat came from the Soviet Union
and its allies. Nixons abuses came not from his efforts to protect the U.S. in the Cold War, but from his direction of intelligence assets against domestic political
opponents. Only someone who has drunk the left-wing Kool-Aid could find equivalence between Watergate and the 9/11 attacks, after which presidents of both parties
have ordered electronic-surveillance that has helped prevent another catastrophic terrorist attack on U.S. soil. RELATED: Mike Lee: Its Time to Put an End to the
NSAs Bulk Collection of Americans Metadata The courts comparison looks even worse when one considers Congresss support for the NSAs broad collection of
metadata. Like every president before him, Nixon had engaged in electronic surveillance on his own authority. I happen to think that presidents have that power as part
of their commander-in-chief authority in wartime, even though it also contains the potential for abuse. After
question is whether our society should strike this balance of security and liberty. That
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fundamental question falls to Congress and the president, which have far superior knowledge and competence in dealing
with foreign national-security threats and better reflect the wishes of the American people . The courts will have a role when legal
challenges arise under the Fourth Amendment, but they have usually displayed deference to the president and Congress when they agree
on national-security questions. Judicial modesty was sorely lacking in the courts decision today. Luckily, the elected branches of
government will have ample opportunity to overrule the Second Circuit. Congress was already scheduled to reauthorize Section 215 in the next three weeks; otherwise,
the law will sunset in June. The Senate may favor a bill that simply reauthorizes the Patriot Act, which should give it the chance to make clear it rejects the Courts
ruling. The House might require that telecom companies hold the database, which would still amount to a rejection of the Second Circuits decision. Or the decision
In that
worst possible result, our judges would bear responsibility for disarming our nation at a time when foreign threats are on
the rise and attacks in the U.S. are in the offing.
could embolden critics of electronic surveillance, who were otherwise going to lose the debate, into gumming up the works and allowing the law to expire.
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end of the Cold War and the extraordinary changes in American foreign
and defense policy that resulted have revived the debate.
The contemporary heirs of Janowitz see the all volunteer military as drifting too far away from the norms of American society, thereby
posing problems for civilian control. They make tour principal assertions. First, the military has grown out of step ideologically with
the public, showing itself to be inordinately right-wing politically , and much more religious (and fundamentalist) than America as
a whole, having a strong and almost exclusive identification with the Republican Party. Second, the military has become
increasingly alienated from, disgusted with, and sometimes even explicitly hostile to, civilian culture. Third, the armed
forces have resisted change , particularly the integration of women and homosexuals into their ranks, and have generally
proved reluctant to carry out constabulary missions. Fourth, civilian control and military effectiveness will both suffer as
the militaryseeking ways to operate without effective civilian oversight and alienated from the society around it
loses the respect and support of that society.
Shrinking defense budgets intensify competition among the military services and can tempt military leaders to seek
congressional help to preserve their share of the money and save the programs they favor. But declining defense dollars
can also exacerbate differences between the military and Congress over how to allocate the budget. In a time of austerity,
the military emphasizes what it considers to be most important for it to perform its missions. Members of Congress are
naturally concerned with the impact that the decisions of the services will have in their districts. These perspectives can
clash.
At times, in order to save jobs in members districts, Congress insists on funding equipment and programs that the military
would rather do without . Today, for instance, the Army doesnt want more main battle tanks, but Congress, with the
encouragement of powerful defense industries, insists on keeping the tank production line open. Congress has forced the
Navy to hold on to ships it wanted to retire and the Air Force to do the same with some aircraft. The military favors
another round of base closures, but Congress, sensitive to the job losses this would cause, opposes the idea.
At the same time, the intensely partisan climate in Washington has turned up the heat on the uneasy relationship between
U.S. President Barack Obamas administration and the military. Afghanistan was the first salvo. But what pulled Congress into the fray has
been Americas conflict with the so-called Islamic State (IS). Reports have swirled that many of the militarys top leaders are unhappy with
the Obama administrations handling of the situation, particularly its resistance to the use of American ground forces. As
Seth Cropsy wrote in The Wall Street Journal, The political landscape is cleared for a contest between the presidents pledge not to use combat troops and the militarys
professional opinion that defeating the enemy requires the use of well-trained and -equipped and disciplined forces on the ground.
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Obamas opponents in Congress have used this to undercut the administration . Since the militarys serving senior leaders will not openly
dissent from the presidents position even in congressional testimony, Republicans have brought in well-known retired officers who can be
more vocal in their opposition. A few weeks ago, Congress heard testimony from retired Marine Gen. James Mattis, who was also the former commander of
the U.S. Central Command; retired Navy Adm. William Fallon, who held the same job; and retired Army Gen. John Keane, a former Army vice chief of staff who
helped convince then-President George W. Bushs administration to surge U.S. forces into Iraq in 2007. All three told Congress that the absence of a clear policy from
the White House made success in Iraq and Syria unlikely. The intended message from Senate Republicans was that these retired flag officers reflected what the rest of
the military thought but could not say.
The most serious instance of Congress trying to drive a partisan wedge between the military and the administration came
when GOP Rep. Doug Lamborn told an audience: A lot of us are talking to the generals behind the scenes, saying, Hey, if
you disagree with the policy that the White House has given you, lets have a resignation . Luckily, none of the militarys senior
leaders heeded Lamborns advice, but the fact that he would suggest this openly shows how caustic todays political climate is.
As Owens noted, problems in civil-military relations seldom pit civilians against the military, but most often happen when elements of the military become
part of a conflict between different factions of the civilian leadership . That is what is happening today, as the military is caught in
the middle of an intense struggle between the Obama administration and its congressional opponents.
The best solution would be a de-escalation of the partisan struggle and the revival of a working partnership on national
security. But since that is not going to happen , at least not during the Obama administration, Congress should resist the temptation to
use the military to oppose the administrations policies no matter how much it disagrees with them. If there are members of
Congress encouraging senior military leaders to openly revolt against the administration, they have crossed a red line. Responsible congressional leaders should stop
their less responsible colleagues. Congress
also should stop forcing the military to buy things it doesnt want and maintain
bases it doesnt need. Members of Congress should be deeply committed to the well-being of their districts, but there are times when the national interest
must take precedence. This is the only way to avoid the shoals in the congressional component of American civil-military
relations.
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