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NAVAL LAW REVIEW Judge Advocate General of the Navy Vice Admiral James W. Houck, JAGC, USN Commander, Naval Legal Service Command Rear Admiral Nanette M. De Renzi, JAGC, USN Commanding Officer, Naval Justice School Captain Michael J. Boock, JAGC, USN Editor-in-Chief Lieutenant Elizabeth A. Rosso, JAGC, USN Managing Editor Lieutenant James H. U. Kirby, JAGC, USN Article Editors Captain Stephen R. Sarnoski, JAGC, USNR Commander Pamella A. Myers, JAGC, USNR Lieutenant Commander Amanda R. Myers, JAGC, USN Lieutenant Commander Catherine Chiappetta, JAGC, USN Lieutenant Kimberly Kelly, JAGC, USN Lieutenant Sara R. de Groot, JAGC, USN Lieutenant Sarah Cottrill, JAGC, USN Lieutenant Sean Sullivan, JAGC, USN Editorial Board Commander Lisa B. Sullivan, JAGC, USN Lieutenant Commander Melissa Powers, JAGC, USN Published by the Naval Justice School, the NAVAL LAW REVIEW encourages frank discussion of relevant legislative, administrative, and judicial developments in military and related fields of law. Views expressed in published articles must be considered solely those of individual authors and do not purport to voice the views of the Naval Justice School, the Judge Advocate General, the Department of the Navy, or any other Agency or Department of the United States. The NAVAL LAW REVIEW is published from appropriated funds by authority of the Judge Advocate General in accordance with Navy Publications and Printing Regulations P-35. This issue of the NAVAL LAW REVIEW may be cited as 58 NAVAL L. REV. 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TITLE AND SUBTITLE 5a. CONTRACT NUMBER Naval Law Review, Vol. 58 5b. GRANT NUMBER 5c. PROGRAM ELEMENT NUMBER 6. AUTHOR(S) 5d. PROJECT NUMBER 5e. TASK NUMBER 5f. WORK UNIT NUMBER 7. PERFORMING ORGANIZATION NAME(S) AND ADDRESS(ES) 8. PERFORMING ORGANIZATION Judge Advocate General of the Navy,Naval Justice School,360 Elliott REPORT NUMBER St.,Newport,RI,02841 9. SPONSORING/MONITORING AGENCY NAME(S) AND ADDRESS(ES) 10. SPONSOR/MONITOR’S ACRONYM(S) 11. SPONSOR/MONITOR’S REPORT NUMBER(S) 12. DISTRIBUTION/AVAILABILITY STATEMENT Approved for public release; distribution unlimited 13. SUPPLEMENTARY NOTES 14. ABSTRACT 15. SUBJECT TERMS 16. SECURITY CLASSIFICATION OF: 17. LIMITATION OF 18. NUMBER 19a. NAME OF ABSTRACT OF PAGES RESPONSIBLE PERSON a. REPORT b. ABSTRACT c. THIS PAGE Same as 150 unclassified unclassified unclassified Report (SAR) Standard Form 298 (Rev. 8-98) Prescribed by ANSI Std Z39-18 3 SUBSCRIPTIONS Subscription information may be obtained by writing to the Managing Editor, NAVAL LAW REVIEW, Naval Justice School, 360 Elliot Street, Newport, RI 02841-1523. Publication exchange subscriptions are available to organizations that publish legal periodicals. INDIVIDUAL PURCHASES Individual copies of the Naval Law Review, formerly titled the JAG Journal, may be purchased by contacting the Defense Technical Information Center (DTIC) and the National Technical Information Service (NTIS) for republication and sale. Copies are not available from the Naval Justice School. Commands not already registered with the DTIC may obtain registration forms and information on ordering publications by writing to: Defense Technical Information Center Attention: Code DTIC-FDRA Cameron Station, Building 5 Alexandria, VA 22304-6145 COMM (703) 767-8273 DSN 427-8273 1-800-CAL-DTIC (225-3842) Individual purchasers may obtain information on ordering publications by writing to: U.S. Department of Commerce National Technical Information Service 5285 Port Royal Road Springfield, VA 22161 CONTENTS _____________________________ Articles, Essays & Notes _____________________________ AXES OF POWER: PREDICTING THE RECEPTION OF ASSERTIONS OF PRESIDENTIAL WAR POWERS IN THE COURTS 1 Lieutenant Michael Bahar, JAGC, USN THE NEED FOR SENTENCING REFORM IN MILITARY COURTS-MARTIAL 39 Colin A. Kisor NO PORT IN A STORM – A REVIEW OF RECENT HISTORY AND LEGAL CONCEPTS RESULTING IN THE EXTINCTION OF PORTS OF REFUGE 65 Lieutenant Lena E. Whitehead, JAGC, USN RESOLVING TOMORROW’S CONFLICTS TODAY: HOW NEW DEVELOPMENTS WITHIN THE U.N. SECURITY COUNCIL CAN BE USED TO COMBAT CYBERWARFARE 89 Toby Friesen _____________________________ Book Reviews _____________________________ BETRAYING OUR TROOPS: THE DESTRUCTIVE RESULTS OF PRIVATIZING WAR 128 Major Thomas B. Merritt, Jr., USMC KINGMAKERS: THE INVENTION OF THE MODERN MIDDLE EAST 135 Major Sondra M. Smith, USA Naval Law Review LVIII AXES OF POWER: PREDICTING THE RECEPTION OF ASSERTIONS OF PRESIDENTIAL WAR POWERS IN THE COURTS Lieutenant Michael Bahar, JAGC, USN ABSTRACT The sphinx-like nature of constitutional war powers are purposefully ambiguous in their allocation and definitions, yet judicial decisions that have faced presidential exertions of these powers consistently rely on three factors, or axes, to determine whether the executive prevails. First, the President’s power over individuals is greatest within an authorized war against a nation, and when the individuals are connected to a foreign state at war with the United States. Second, the further from the homeland the presidential use of force is, the more likely courts are to support the President, except in cases tantamount to an invasion or insurrection. Third, the more defensive the use of force, including against certain terrorists, the more favorably the courts will view presidential powers. Exigency, while itself not an axis, provides the force-multiplier, tipping the balance towards the constitutional office most suited to decision, activity, secrecy, and dispatch. I. INTRODUCTION Writers on the relative powers of the presidency versus the Congress almost invariably lapse into advocacy when they comment on the textual, historical or functional bases of war powers. Phillip Bobbitt perceptively notes that “virtually all commentary on this subject falls into one of two positions,” with evidence often selectively chosen—and selectively omitted—to forward one camp or the other.1 John Yoo, for example, cites Alexander Hamilton  Michael Bahar is a Lieutenant in the United States Navy Judge Advocate General’s (JAG) Corps and an adjunct professor at NYU’s Wilf Family Department of Politics. He would like to thank Matt Waxman and Sarah Cottrill for their invaluable assistance. He would also like to thank Hannah Roberts and his family. The views expressed in this paper are the author’s own. They do not necessarily represent the views of the Department of Defense, the United States Navy, or any of its components. 1 Phillip Bobbitt, War Powers: An Essay on John Hart Ely’s War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath, 92 MICH. L. REV. 1364, 1373 (1994). He “sarcastically” refers to this method as “lawyer’s history,” notwithstanding the lawyer’s true obligation to account for opposing precedent. 1 Report Documentation Page Form Approved OMB No. 0704-0188 Public reporting burden for the collection of information is estimated to average 1 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to Washington Headquarters Services, Directorate for Information Operations and Reports, 1215 Jefferson Davis Highway, Suite 1204, Arlington VA 22202-4302. Respondents should be aware that notwithstanding any other provision of law, no person shall be subject to a penalty for failing to comply with a collection of information if it does not display a currently valid OMB control number. 1. REPORT DATE 3. DATES COVERED 2009 2. REPORT TYPE 00-00-2009 to 00-00-2009 4. TITLE AND SUBTITLE 5a. CONTRACT NUMBER Naval Law Review, Vol. 58 5b. GRANT NUMBER 5c. PROGRAM ELEMENT NUMBER 6. AUTHOR(S) 5d. PROJECT NUMBER 5e. TASK NUMBER 5f. WORK UNIT NUMBER 7. PERFORMING ORGANIZATION NAME(S) AND ADDRESS(ES) 8. PERFORMING ORGANIZATION Judge Advocate General of the Navy,Naval Justice School,360 Elliott REPORT NUMBER St.,Newport,RI,02841 9. SPONSORING/MONITORING AGENCY NAME(S) AND ADDRESS(ES) 10. SPONSOR/MONITOR’S ACRONYM(S) 11. SPONSOR/MONITOR’S REPORT NUMBER(S) 12. DISTRIBUTION/AVAILABILITY STATEMENT Approved for public release; distribution unlimited 13. SUPPLEMENTARY NOTES 14. ABSTRACT 15. SUBJECT TERMS 16. SECURITY CLASSIFICATION OF: 17. LIMITATION OF 18. NUMBER 19a. NAME OF ABSTRACT OF PAGES RESPONSIBLE PERSON a. REPORT b. ABSTRACT c. THIS PAGE Same as 150 unclassified unclassified unclassified Report (SAR) Standard Form 298 (Rev. 8-98) Prescribed by ANSI Std Z39-18 2009 Axes of Power eleven times in an official memorandum to support originalist arguments that the Founders meant presidential war powers to be plenary and unreviewable, but cites James Madison, who consistently represents a far less expansive view of presidential power, only once.2 The scholar Louis Fisher, on the other hand, embraces the “classical view” in which Congress controls the decision to initiate war, except in response to an actual armed attack, but gives markedly less attention to the equally rigorous alternatives that provide the President greater latitude to initiate force.3 In fact, very little is clear from the Founding era.4 Despite fervent assertions and protestations from both camps, the Framers did not define, demarcate and delineate the power to make war. As Justice Robert Jackson eloquently stated in 1947: A judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves. Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other. And court decisions are indecisive because of the judicial practice of dealing with the 2 The President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them, 2001 WL 34726560, *23 n. 32 (Op. Off. Legal Counsel, September 25, 2001) (primarily authored by John Yoo). Speaking of the difficulties in “establishing proof to a criminal law standard” of an individual’s association with terrorism, Mr. Yoo nonetheless states that those difficulties do not bar the president from using “such military measures as, in his best judgment, he thinks necessary or appropriate to defend the United States from terrorist attacks.” Id. He concludes his memo by stating that, “In the exercise of his plenary power to use military force, the President’s decisions are for him alone and are unreviewable.” Id. 3 LOUIS FISHER, PRESIDENTIAL WAR POWER (2nd ed. rev. 1995). 4 See, e.g., Eugene V. Rostow, Great Cases Make Bad Law: The War Powers Act, 50 TEX. L. REV. 833, 844 (1972) (“How did the Founding Fathers intend to allocate the power to use the armed forces between the President and the Congress? I do not start here because I believe that we can conjure up from their few spare words on the subject a sacred norm of Arcadian purity to which at all costs we must ‘return,’ a tight model, capable, like a magical computer or coin machine, of providing clear solutions for every contingency likely to arise. The astute men who drafted the Constitution and started it on its way had a much deeper and more realistic sense of the relationship between law and life than that.”). 2