COLLECTION OF THE SUPREME COURT OF THE UNITED STATES 1815 Born, Philadelphia, Pa.. Justice Powell stated that the district court was bound by the Supreme Court’s previous decisions, whic
Trang 1there were bombings and shootings in Wallace’s Alabama
In the same year a federal judge ordered the University of Alabama to allow two black students to enroll When Wallace vowed to prevent them from entering the university, U.S
attorney general ROBERT F KENNEDY traveled to Alabama to warn him that the Kennedy administration would enforce the court’s decree
On June 11, 1963, Wallace, having advised citizens of Alabama to stay away from the university, stood at a podium before the school door Attorney General Kennedy telephoned once more, only to be told that the governor was unavailable As reporters, photographers, and police officers watched, Wallace held up his hand to prevent Vivian Malone and James Hood from entering Then he holed himself up inside the school for four hours Meanwhile, President Kennedy federalized the Alabama
NATIONAL GUARD, which then moved in and forced Wallace to abandon his “schoolhouse stand” and admit the students
In 1964 Wallace sought the Republican Party’s presidential nomination He did well in two early primaries, but the endorsement went
to Senator BARRY M GOLDWATER, of Arizona
Wallace ran again as an independent in 1968, with moderate success, and sought the Demo-cratic nomination four years later In this race,
he swept aside challengers such as George
S McGovern, HUBERT H HUMPHREY, and John
V Lindsay in the Florida primary But he would not complete the race
On May 15, 1972, moments after giving a speech at a Laurel, Maryland, shopping center, Wallace was shot five times His would-be assassin, Arthur Bremer, was caught, convicted, and sentenced to 53 years in prison The shooting left the governor paralyzed from the waist down It also began a provocative transformation of identity
Reelected as governor in 1974, and serving consecutive terms until his retirement in 1986, Wallace gradually retreated from his segrega-tionist views, admitting that he may have been wrong all along Poor health forced Wallace to forego running for a fifth term as governor in
1986, but he left a legacy far different from the one suggested by his first term in office In contrast to the obstinate figure blocking the door to the University of Alabama, he had become a leader recognized for lasting
contributions to both blacks and whites Wallace appointed several African Americans
to important state posts He also helped to establish a statewide junior college system, increased state aid to black universities, increased support for inner cities, and improved industrial development
Wallace’s health continued to decline and for several years he suffered from Parkinson’s disease Wallace died at the age of 79 on September 13, 1998, in Montgomery, Alabama
At the time of his death, many of his political appointees still held statewide office
FURTHER READINGS Carter, Dan T 2000 The Politics of Rage: George Wallace, the Origins of the New Conservatism, and the Transformation
of American Politics Baton Rouge: Louisiana State Univ Press.
Frederick, Jeffrey 2007 Stand Up for Alabama: Governor George C Wallace Tuscaloosa, Ala.: Univ of Alabama Press.
Lesher, Stephan 1995 George Wallace: American Populist Reading, Mass.: Addison-Wesley.
——— 1994 George Wallace Reading, Mass.: Addison-Wesley.
Wallace, George, Jr., and James Gregory 1975 The Wallaces
of Alabama Chicago: Follet Publishing.
CROSS REFERENCE School Desegregation.
vWALLACE, JOHN WILLIAM John William Wallace served as reporter of decisions for the U.S Supreme Court from 1863
to 1875 Wallace is noted for being the last reporter to privately publish decisions of the Court and for having his name on the spine of each volume For example, the citation 87 U.S (20 Wall.) 590 indicates that the decision is to be found on page 590 of volume 87 of United States Reports (the cumulative number of volumes, regardless of the reporter), which is volume 20 of those reports published by Wallace
Wallace was born on February 17, 1815, in Philadelphia, Pennsylvania The son of a distin-guished Philadelphia lawyer, Wallace graduated from the University of Pennsylvania in 1833 He studied law in his father’s office but decided to devote himself to being a law librarian In 1841 Wallace became the librarian of the Law Association of Philadelphia He assumed his first reporting task in 1849, when he published the first of three volumes of the opinions of the U.S Court of Appeals for the Third Circuit
WE HAVEN'T BEEN
AGAINST PEOPLE
WE'VE BEEN
AGAINST BIG
GOVERNMENT TRYING
TO TAKE OVER AND
WRITE A GUIDELINE
FOR YOU AND TELL
YOU HOW TO CROSS
THE STREET,WHAT
TO DO WITH YOUR
UNION AND YOUR
BUSINESS WHEN YOU
KNOW HOW TO DO IT
YOURSELF
—G EORGE
C W ALLACE
288 WALLACE, JOHN WILLIAM
Trang 2During the 1840s and early 1850s Wallace
concentrated on the scholarly examination of
English law reports and reporters In 1844
he published The Reporters, Chronologically
Arranged: with Occasional Remarks upon
their Reporting Merits The work was warmly
received for its scholarship and commentary
and was republished frequently in the
nine-teenth century Wallace also provided notes on
U.S cases included in a series of volumes
known as the British Crown Cases Reserved
(1839–1853)
In 1863 Wallace became the seventh
re-porter of decisions for the Supreme Court,
replacing JEREMIAH S BLACK Between 1863 and
1875 Wallace published 23 volumes of reports,
which form volumes 68–90 of United States
Reports His volumes were praised for their
accuracy and quality of editing
Wallace resigned in 1875 after Congress
appropriated $25,000 to be used for publishing
Court decisions After leaving his position,
Wallace wrote many scholarly articles and
became president of the Historical Society of
Pennsylvania
Wallace died on January 12, 1884, in
Philadelphia
WALLACE V JAFFREE
Wallace v Jaffree, 472 U.S 38, 105 S Ct 2479,
86 L Ed 2d 29 (1985) involved a court
challenge to the constitutionality of an Alabama
statute authorizing a daily period of silence in
Alabama’s public schools for meditation or
voluntary prayer The case was noteworthy not
only because of the Supreme Court’s decision
but also because of conclusions reached by the
lower courts in the same case
The case originated in the U.S District Court for the Southern District of Alabama
Chief Judge W Brevard Hand came to the surprising conclusion that the Establishment Clause of the FIRST AMENDMENT to the U.S
Constitution prohibited only the federal gov-ernment from establishing a state religion and that the DUE PROCESS CLAUSE of the FOURTEENTH AMENDMENT did not make the prohibition binding on the states Thus, reasoned Judge Hand, the federal Constitution presented no bar
to Alabama’s establishment of a state religion
Judge Hand found that“the relevantLEGISLATIVE HISTORY surrounding the adoption of both the First Amendment and of the Fourteenth Amendment, together with the plain language
of those amendments, leaves no doubt that those amendments were not intended to forbid
John W Wallace.
COLLECTION OF THE SUPREME COURT
OF THE UNITED STATES
1815 Born, Philadelphia, Pa.
◆
1833 Graduated from Univ of Pa.
◆
1849 Reporter, Third Circuit Court of Appeals
1861–65 U.S Civil War
1844 Published The Reporters, Chronologically Arranged: with Occasional Remarks upon their Reporting Merits
1884 Died, Philadelphia, Pa.
1863–75 Served as reporter for the U.S.
Supreme Court
1812–14 War of 1812
IWAITED IN VAIN
TO HEAR THE COMMERCIAL LAW OF
MY OWN,FREE,
GREAT,COMMERCIAL COUNTRY
BECAUSE NO MAN CAN SAY THAT SUCH
A SYSTEM EXISTS
—J OHN W W ALLACE
WALLACE V JAFFREE 289
Trang 3religious prayers in the schools which the states and their political subdivisions mandate.”
Jaffree, 554 F Supp at 1128.] In Jaffree, the district court thus openly rejected decades of settled SUPREME COURT precedents reaching the opposite conclusion
Judge Hand’s opinion was delivered on January 14, 1983 His remarkable conclusions were quickly appealed to the U.S Court of Appeals for the Eleventh Circuit, and the disappointed
PLAINTIFF, Jaffree, also made a simultaneous application for a stay to the U.S Supreme Court
On February 11, 1983, Justice LEWIS F POWELL
granted Jaffree’s application for a stay of Judge Hand’s opinion Justice Powell stated that the district court was bound by the Supreme Court’s previous decisions, which held that the Establishment Clause, as made applicable to the states by the Due Process Clause of the Fourteenth Amendment, does indeed prohibit a state from authorizing prayer in the public schools
The Eleventh Circuit reversed Judge Hand’s opinion on May 12, 1983 (Jaffree v Wallace, 705 F.2d 1526, 1536[11th Cir 1983]) It concluded that both Alabama Code sections in question,
§ 16-1-20.1 and § 16-1-20.2, were unconstitu-tional (Jaffree, 705 F.2d at 1535-36), and it agreed with Justice Powell that the Supreme Court’s Establishment Clause cases were clear and controlling on the facts as presented to Judge Hand
The Eleventh Circuit acknowledged the extensive scholarly debate over the interplay between the First and Fourteenth Amendments;
however, the court made it clear that the U.S
Supreme Court had already considered and decided the historical implications surrounding the Establishment Clause and concluded that its present interpretation of the First and Four-teenth Amendments is consistent with the historical evidence In explicit language, the Court of Appeals reiterated that the Supreme Court is the ultimate authority on the interpretation of the U.S Constitution and laws; its interpretations may not be disregarded (Jaffree, 705 F.2d at 1532)
The state subsequently appealed the ruling
of the Eleventh Circuit Eventually, Wallace v
Jaffree reached the U.S Supreme Court, which refused to question the application of the Establishment Clause to the states Jaffree presented the Supreme Court with an
opportunity to re-examine the incorporation
of the Establishment Clause, but not a single justice on the Supreme Court expressed any desire to reconsider the Supreme Court deci-sions that had consistently applied the Estab-lishment Clause to the states The justices refused to comment at length on the district court’s remarkable conclusion that the federal Constitution imposes no obstacle to Alabama’s establishment of a state religion But the Court did find it appropriate to restate how firmly embedded in constitutionalJURISPRUDENCEis the proposition that the states are restrained from curtailing individual freedoms protected by the First Amendment
Justice SANDRA DAY O’CONNOR wrote a con-curring opinion stating that the First and Fourteenth Amendment guarantees preclude the federal and state governments from making any law establishing a government-sponsored religion
Three members of the Supreme Court dissented in Jaffree: Chief JusticeWARREN BURGER, Justice BYRON R WHITE, and Justice WILLIAM H
REHNQUIST Chief Justice Burger and Justice White did not challenge the Court’s previous decisions applying the Establishment Clause to the states, but Justice Rehnquist focused his
DISSENT on what he believed is the proper reading of the Establishment Clause Instead
of the metaphorical “wall of separation” be-tween church and state, he concluded that the Founders intended for the Establishment Clause
to prevent the federal government from estab-lishing a national church or preferring one religious denomination over another His dis-sent did not suggest that he had any intention of re-examining the application of the First Amendment to the states Rather, he accepted without comment the incorporation of the First Amendment and focused his comments on the proper scope of application for the Establish-ment Clause
Wallace v Jaffree enjoys the dubious distinc-tion of being listed as one of the ten worst non-Supreme Court decisions, in Bernard Schwartz’s
A Book of Legal Lists: The Best and Worst in American Law Regarding Judge Hand’s conclu-sion that the Establishment Clause did not apply
to the state, Schwartz asked rhetorically,“What should be said about the decision of a federal district judge that “overruled” settled Supreme Court jurisprudence?”
290 WALLACE V JAFFREE
Trang 4FURTHER READINGS
Hellman, Arthur D., William D Araiza, and Thomas E.
Baker 2006 First Amendment Law: Freedom of
Expres-sion and Freedom of Religion Newark, N.J.: LexisNexis.
Fraser, James W 1999 Between Church and State: Religion
and Public Education in a Multicultural America New
York: St Martin ’s.
Schwartz, Bernard 1997 A Book of Legal Lists: The Best and
Worst in American Law New York: Oxford Univ Press.
Urofsky, Melvin I 2002 Religious Freedom: Rights and Liberties
under the Law Santa Barbara, Calif.: ABC-CLIO.
CROSS REFERENCE
Religion.
WALNUT STREET PRISON
The Walnut Street Prison was a pioneering effort
in prison reform Originally built as a
conven-tional jail just before the American Revolution, it
was expanded in 1790 and hailed as a model of
enlightened thinking about criminals The prison,
in fact, was known as a“penitentiary” (from the
Latin word for remorse) It was designed to
pro-vide a severe environment that left inmates much
time for reflection, but it was also designed to be
cleaner and safer than past prisons The Walnut
Street Prison was one of the forerunners of an
entire school of thought on prison construction
and reform
The prison was built on Walnut Street, in
Philadelphia, as a city jail in 1773 to alleviate
overcrowding in the existing city jail Although
designed by ROBERT SMITH, Pennsylvania’s most
prominent architect, the building was a typical
U-shaped building, designed to hold groups of
prisoners in large rooms By and large the role
of prisons was to incarcerate criminals There
was little regard for their physical well-being,
nor were there any attempts to rehabilitate
them Prisons were overcrowded and dirty, and
inmates attacked each other regularly Those
who served their sentences came out of prison
probably more inclined toward a criminal life
than they were before their incarceration
It was the Quakers of Philadelphia who
came up with the concept for what they called a
penitentiary—a place where prisoners could
reflect on their crime and become truly sorry
for what they had done The Quakers believed
that through reflection and repentance, inmates
would give up crime and leave prison
rehabili-tated Shortly after the American Revolution, a
group of Quakers formed the Philadelphia
Society for Alleviating the Miseries of Public
Prisons, whose goal was made clear in its name
(Later the group became known as the Penn-sylvania Prison Society.) In the years after the Revolution this group worked to encourage prison reform, and its efforts finally paid off in
1790 when the Walnut Street Jail became the first state penitentiary in the country
The main addition to the Walnut Street complex was a new cellblock called the
“Penitentiary House.” Built in the courtyard of the existing structure, it included a series of small cells designed to hold individual prison-ers The cells and the corridors connecting them were designed to prevent prisoners from communicating with each other Windows were high up (the cells had nine-foot high ceilings) and grated and louvered to prevent prisoners from looking onto the street Each cell had a mattress, a water tap, and a privy pipe Inmates were confined to their cells for the duration of their confinement The only person they saw was the guard and then only briefly once per day
They were sometimes allowed to read in their cells, but for the most part they sat in solitude
The Quakers saw this solitary confinement not
as a punishment but as a time for reflection and remorse That was the reason the inmates were not put to work Labor, said penitentiary proponents, would preoccupy the inmates and keep them from reflecting on their crimes
The Walnut Street Prison became in part the model for what became known as the
“Pennsylvania System” of prison design and philosophy Other prisons built on the
In 1790, Philadelphia’s Walnut Street jail was expanded to alleviate overcrowding The result was the first U.S penitentiary, the Walnut Street Prison, shown in the background of this
1799 engraving by William Russell Birch.
HULTON ARCHIVE/GETTY IMAGES
WALNUT STREET PRISON 291
Trang 5Pennsylvania model included a prison in Pittsburgh in 1821, the Eastern State Peniten-tiary (Cherry Hill) in eastern Philadelphia in
1836, and the Trenton State Prison in New Jersey the same year The concepts of solitary confinement and repentance were key compo-nents of prison life at these institutions, although some Pennsylvania System prisons did introduce labor to the inmates Visitors from overseas who were interested in prison reform visited Walnut Street, Eastern State, and similar prisons to see how they operated and to gain knowledge about prison reform strategies
Meanwhile, in 1821 a prison was opened in the small upstate New York town of Auburn
That prison, which relied on individual cell-block architecture, required inmates to work
10 hours per day, six days per week A number
of prison reformers believed that by making the inmates work in an atmosphere free of corrup-tion or criminal behavior, they would build new sets of values The work would rehabilitate them because it would give them a sense of purpose, discipline, and order This system became known as the “Auburn System,” and it was followed in 1826 with the opening of Sing Sing prison on the banks of the Hudson River
Soon it was clear that the Auburn system worked better at rehabilitating prisoners than the Pennsylvania system, and in the next century the Auburn system became the domi-nant one Many prisons built to operate under the Pennsylvania System switched to the Auburn System Vestiges of the Pennsylvania System exist in the philosophy of humane punishment, although no prison in the U.S as
of 2003 would place anyone in near-total isolation except in extreme circumstances
As for Walnut Street, its success was short-lived despite the good intentions of the Quakers The practical matter of housing prisoners became more pressing than the desire among prison officials to rehabilitate the inmates Walnut Street became overcrowded and dirty, and there was no sign that isolated prisoners were being rehabilitated through solitude By the 1830s the prison had outlived its usefulness, and it was closed in 1835 Later it was razed, and a library now stands on the site
FURTHER READINGS Edge, Laura B 2009 Locked Up: A History of the U.S Prison System Minneapolis, Minn.: Twenty-First Century Books.
Hirsch, Adam Jay 1992 The Rise of the Penitentiary: Prisons and Punishment in Early America New Haven, Conn.: Yale Univ Press.
Johnston, Norman 2000 Forms of Constraint: A History of Prison Architecture Urbana: Univ of Illinois Press.
WANT The absence or deficiency of what is needed or desired
Want of jurisdiction, for example, is a lack of authority to exercise in a particular manner a power possessed by a tribunal or board
WANT OF CONSIDERATION
A comprehensive term for all transactions or situations where no inducement to a contract was intended to pass between the parties thereto and, therefore, no legally enforceable contract is created Want of consideration differs from failure of consideration, which refers to a situation wherein consideration was originally existing and valid but has since become valueless or ceased to exist
WANTON Grossly careless or negligent; reckless; malicious The term wanton implies a reckless disre-gard for the consequences of one’s behavior A wanton act is one done in heedless disregard for the life, limbs, health, safety, reputation, or property rights of another individual Such an act is more thanNEGLIGENCEor gross negligence;
it is equivalent in its results to an act of willful misconduct A wanton injury is one precipitated
by a conscious and intentional wrongful act
or by an omission of a known obligation with reckless indifference to potential harmful consequences
WAPENTAKE
A local division of a shire or county in oldENGLISH LAW; the term used north of the Trent River for the territory called a hundred in other parts of England
The name wapentake is said to come from weapon and take, an indication that it referred
to an area organized for military purposes
WAR Open and declared conflict between the armed forces of two or more states or nations
292 WANT
Trang 6Article I, Section 8, Clause 11 of the U.S.
Constitution gives Congress alone the power to
declare war In addition, Congress is given sole
authority by the Constitution “To raise and
support armies” and “To provide for calling
forth the MILITIA to execute the laws of the
Union, suppress insurrections and repel
inva-sions.” The U.S Constitution also spells out the
military powers of thePRESIDENT OF THE UNITED
STATES: he or she serves as commander in chief
of the U.S armed forces Throughout U.S
history, there have been conflicts between the
legislative and executive branches over who has
the greater military power In practice,
regard-less of constitutional doctrine, the EXECUTIVE
BRANCHusually prevails
Executive Military Power
Such PRESIDENTIAL POWERis illustrated by
Presi-dentABRAHAM LINCOLN’s actions at the beginning
of the Civil War In the ten weeks between the
fall of Fort Sumter and the convening of
Congress in July 1861, Lincoln made war
preparations based on his authority as
com-mander in chief He initiated the drafting of
men for military service, approved of a
Southern naval blockade, and suspended the
writ of HABEAS CORPUS Congress later ratified
most of Lincoln’s actions
In the twentieth century, several U.S
presidents have committed U.S armed forces
without a declaration of war In 1903 and 1904,
President THEODORE ROOSEVELT took military
action in Panama and the Dominican Republic
without consulting Congress President
WOO-DROW WILSON sent troops into Mexico without
congressional approval However, the most
serious infractions began in 1951, when
Presi-dentHARRY S.TRUMANordered troops to Korea as
part of a UNITED NATIONS “police action.” This
was followed, in the 1960s and 1970s, by the
VIETNAM WAR, which PresidentsJOHN F.KENNEDY,
LYNDON B JOHNSON, and RICHARD M NIXON
prosecuted without a congressional declaration;
in the 1980s, by the invasion of Grenada, which
PresidentRONALD REAGAN carried out without a
declaration of war; in the 1990s, by the Gulf
War, which was prosecuted by PresidentGEORGE
H.W.BUSH without a formal declaration of war;
and, in the 2000s, by the wars in Afghanistan
and Iraq, which were undertaken by President
GEORGE W.BUSH
Congress attempted to alter the balance
of power by passing the War Powers Resolution
of 1973 (50 U.S.C §§ 1541 et seq.), which restricts the president’s power to mobilize the military during undeclared war In a national emergency, the act allows the president to dispatch troops without consulting Congress
The president must, however, notify Congress within 48 hours, and the duration of time that troops can be committed in a foreign location is limited The act also provides aVETOmechanism that allows Congress to force a recall of troops
at any time
The act has not prevented subsequent presidents from taking military action For example, in 1990, without seeking approval from Congress, President George H.W Bush sent troops to Saudi Arabia in response to the Iraqi invasion of Kuwait In 2002, with war with Iraq imminent, President George W Bush proposed a resolution that would allow him to declare war at a time of his own choosing, without having to consult with Congress first
Congress approved the authorization in 2002, and President Bush declared war on Iraq in March 2003
Status and Rights of Citizens During a time of war, the U.S government may properly compel the services of all its citizens via military CONSCRIPTION, also known as the draft Any citizen who resists compulsory military service may be prosecuted for draft evasion Any citizen who actively takes up arms against the United States during a time of war or who gives aid and comfort to an enemy of the United States during a time of war can be prosecuted for TREASON The United States also has the power to recall nationals who are abroad and subject them to penalty if they do not obey
The government can take steps it deems necessary for national security against enemy
ALIENS Enemy aliens residing in the United States at the outbreak of a declared war or who enter the United States during a war are properly subject to arrest, detention, intern-ment, orDEPORTATION
Enemy Intercourse The general rule is that, during a declared war, all intercourse, correspondence, and traffic between U.S citizens and subjects of enemy states that might be advantageous or provide comfort to the enemy are prohibited For example, it is illegal to transmit money across enemy lines In addition,
a U.S citizen cannot lawfully make a contract
WAR 293
Trang 7with a citizen of an enemy state while war exists, and any such contract is, therefore, void The laws of war proscribe all trading with the enemy and all other commercial relations while a state
of war exists
Requisition of Private Property
In times of war, Congress and the president, as commander in chief, have the power to requisition private property necessary for the war effort
A military commander can seize or requisi-tion a citizen’s property for public use or to prevent it from falling into enemy hands The commander can do this, however, only in situations involving imminent and impending danger or necessity The services and production
of a business organization, such as a shipping company, can properly be requisitioned
An individual whose private property is requisitioned is entitled to fair compensation
However, the compensation does not have to be paid in advance or at the time the property is seized When compensation is made, the owner
is entitled to receive the reasonable value of the property The market value of the requisitioned property is generally used as the measure of fair compensation
Martial Rule Martial rule exists when military authorities exercise varying degrees of control over civilians
in territory where, due to war or public commotion, the civil government is not able
to maintain order and enforce the law
War Powers of the U.S Government The power of the federal government to conduct war extends to every matter and activity that has an effect on its conduct and progress The war powers embrace every phase
of national defense, including the mobilization and use of all resources of the nation and the protection of war materials Most of these powers have not been used sinceWORLD WAR II, because the United States did not fight under a declaration of war while engaged in conflicts in Korea, Vietnam, and the Persian Gulf
Congress has the authority to stimulate the production of the war equipment and supplies
by all proper methods, including the payment
of subsidies or the imposition of limits on profits
Congress can control the food supply during war to ensure that military and civilian needs are met Other materials may be rationed
as well, including gasoline Congress also can regulate and control prices as a wartime emergency measure to prevent inflation Price controls are designated to stabilize economic conditions, prevent speculative and abnormal increases in prices, increase production, and ensure a sufficient supply of goods at fair prices The federal government can also impose rent control on housing
Civil liberties can also be curtailed during wartime The government can censor news that affects national security, such as reports of troop movements It is within the power of Congress
to enact SEDITION laws that prohibit political speech that disrupts the war effort or givesAID AND COMFORTto the enemy
During the early months of U.S involve-ment in World War II, President FRANKLIN D
ROOSEVELT ordered the removal of people of Japanese ancestry from the West Coast At the time the action was justified on national security grounds, because military commanders believed that California was vulnerable to Japanese spies and saboteurs The U.S Supreme Court, in
KOREMATSU V.UNITED STATES, 323 U.S 214, 65 S
Ct 193, 89 L Ed 194 (1944), upheld the removal Thousands of Japanese Americans lost their property and businesses and were “relo-cated” to concentration camps for the duration
of the war
The September 11 Attacks and the U.S Response
TheSEPTEMBER11ATTACKSagainst New York City and Washington, D.C., altered the way the world views military conflicts in a number of ways Although the September 11 attacks were compared by many to the Pearl Harbor attack
of 1941, there was one major difference between the two attacks The attack on Pearl Harbor was carried out by the military forces of a sovereign nation, Japan, while the September 11 attacks were carried out by a decentralized terrorist organization—al Qaeda—whose members hailed from different countries
After the attacks, the first question, then, was what would be an appropriate response to a deadly attack by non-state, individual actors? The United States answered this question by announcing that it would hold responsible any
294 WAR
Trang 8country harboring members of al Qaeda Since
U.S intelligence indicated that the Taliban
government in Afghanistan had been allowing
al Qaeda to use that country as sanctuary in
which to plan the attacks, the U.S military
launched an invasion of Afghanistan to topple
the Taliban, which it successfully completed in
the spring of 2002
The next issue was how the United States
would address future threats from other
countries that were avowed enemies of the
United States These countries possessed
WEAP-ONS OF MASS DESTRUCTION (WMD) that the
countries had deployed in the past and were
now capable of deploying against the United
States via a terrorist organization According to
a January 2003 report by United Nations’
inspector Hans Blix, Iraq had failed to
demon-strate that it had dismantled the stockpile of
WMD it had built during the 1990s Based in
part on this report and intelligence gathered
from other sources, the United States invaded
Iraq in 2003 Whereas the invasion effectively
removed Iraq President Saddam Hussein from
power, no WMD were ever found
The United States’ pre-emptive military
operation against Iraq, which was
unprece-dented and controversial to begin with, received
another black eye when it was revealed that
many unlawful enemy combatants–a category
of persons who do not qualify for
prisoner-of-war status under the Geneva Conventions
because they failed to comply with the RULES
OF WAR requiring armed combatants to wear
uniforms and carry arms openly–detained by
the United States were undergoing harsh
interrogation methods that many believed
constituted torture or WAR CRIMES Although
more than 500 U.S military personnel were
accused of war crimes in connection with the
Iraq invasion, fewer than 60 of them were
convicted However, the U.S Supreme Court
opened the door for further judicial proceedings
brought against the U.S military, when it ruled
that persons detained at the U.S Naval Facility at
Guantanamo Bay, Cuba, have a constitutional
right to seek habeasCORPUSreview regarding the
legality of their detention Boumediene v
Bush, —U.S.—, 128 S Ct 2229, 171 L Ed 2d
41 (2008)
As the U.S response to ongoing terrorist
threats continues, historians, politicians, and
the legal community struggle to place these
recent developments in the larger context of more conventional experiences in prior military conflicts
FURTHER READINGS Hardy, Colleen E 2009 The Detention of Unlawful Enemy Combatants During the War on Terror El Paso: LFB Scholarly Pub.
Lewis, Michael W., ed The War on Terror and the Laws of War: A Military Perspective New York: Oxford University Press.
Wittes, Benjamin, ed 2009 Legislating the War on Terror:
An Agenda for Reform Washington, D.C.: Brookings Institution Press.
CROSS REFERENCES Armed Services; Arms Control and Disarmament; Japanese American Evacuation Cases; Korean War; Martial Law;
Military Government; Military Law; Military Occupation;
Militia; Milligan, Ex parte; Rules of War; Tonkin Gulf Resolution; War Crimes; World War I.
WAR CRIMES Acts that violate the international laws, treaties, customs, and practices governing military conflict between belligerent states or parties
War crimes may be committed by a country’s regular armed forces, such as its army, navy, or air force, or by irregular armed forces, such as guerrillas and insurgents Soldiers may be punished for war crimes, as may military and political leaders, members of the judiciary, industrialists, and civilians who are enlisted by
a belligerent to contravene the RULES OF WAR However, isolated instances of TERRORISM
and single acts of rebellion are rarely, if ever, treated as war crimes punishable under the international rules of warfare Instead, they are ordinarily treated as criminal violations punish-able under the domestic laws of the country in which they occur
Crimes against Peace Most war crimes fall into one of three categories: crimes against peace, crimes against humanity, and traditional war crimes Crimes against peace include the planning, commence-ment, and waging of aggressive war, or war in violation of international agreements Aggres-sive war is broadly defined to include any hostile military act that disregards the territorial boundaries of another country, disrespects the political independence of another regime, or otherwise interferes with the sovereignty of an internationally recognized state Wars fought in
SELF-DEFENSEare not aggressive wars
WAR CRIMES 295
Trang 9Following WORLD WAR II, for example, the Allies prosecuted a number of leading Nazi officials at theNUREMBERG TRIALSfor crimes against peace During the war, the Nazis had invaded and occupied a series of sovereign states, including France, Czechoslovakia, Poland, and Austria
Because those invasions were made in an effort to accumulate wealth, power, and territory for the Third Reich, Nazi officials could not claim to be acting in self-defense Thus, those officials who participated in the planning, initiation, or execution of those invasions were guilty of crimes against peace
Hermann Göring, chief of the Luftwaffe (the German Air Force), was one Nazi official who was convicted of crimes against peace at the Nuremberg trials The international military tribunal presiding at Nuremberg, composed of judges selected from the four Allied powers (France, Great Britain, the Soviet Union, and the United States), found that Göring had helped plan and carry out the invasions of Poland and Austria and had ordered the destruction of Rotterdam, Holland, after the city had effectively surrendered
Crimes against Humanity Crimes against humanity include the DEPORTA-TION, enslavement, torture, persecution, and extermination of certain peoples based on their
race, religion, ethnic origin, or some other identifiable characteristic This category of war crimes was created almost entirely from the catalog of atrocities committed by the Nazi regime in World War II Although other regimes have since committed horrors of their own, the Nazis established the standard by which the wartime misconduct of all subse-quent regimes is now measured
As part of the Nazi blitzkrieg, the Germans constructed concentration camps around Eur-ope where they gassed, tortured, and inciner-ated millions of Jews and other persons they deemed impure or subversive to the so-called Aryan race Millions of others who escaped this fate were deported to Nazi labor camps in occupied countries where they were compelled
at gunpoint to work on behalf of the Third Reich The Nazi leaders who were responsible for implementing this totalitarian system of terror were guilty of crimes against humanity Many Nazi leaders were prosecuted for crimes against humanity during the Nuremberg trials For example, Ernst Kaltenbrunner, head
of the Nazi security organization in charge of the Gestapo (the German secret police), was convicted and sentenced to death based on evidence that he had authorized the extermina-tion of Jews at concentraextermina-tion camps and ordered the CONSCRIPTION and deportation of civilians to foreign labor camps
More than 50 years later, the United States was again involved in high-profile accusations
of war crimes, only this time members of the U.S military were accused of committing them Following the September 11, 2001, attacks on New York City and Washington, D.C., the administration ofGEORGE W.BUSHdeclared WAR
ON TERRORISMand launched military invasions of Afghanistan in 2001 and Iraq in 2003 During the course of those armed conflicts, the United States detained persons they deemed“unlawful combatants,” a category of persons who do not qualify for prisoner-of-war status under the Geneva Conventions because they failed to comply with the rules of war requiring that armed combatants wear uniforms and carry arms openly The U.S military detained these alleged unlawful combatants all over the world
Some were detained locally, at prisons near the battlefields in Afghanistan and Iraq, includ-ing a prison in Baghdad called Abu Ghraib
Former Nazi prison
guard John
Demjanjuk was
deported from the
United States in 2009
after a Munich court
charged him with
being an accessory to
murder in the death
of 29,000 Jews during
World War II.
AP IMAGES
296 WAR CRIMES
Trang 10Others were shipped to the U.S Naval facility at
Guantanamo Bay, Cuba Untold numbers were
sent by theCENTRAL INTELLIGENCE AGENCY(CIA) to
secret prisons across the Middle East, Eastern
Europe, and Asia, via a process known as
“extraordinary rendition,” where they were
reportedly subject to harsh interrogations Over
the course of the two wars, hundreds of
detainees have alleged war crimes by the United
States Of the more than 500 U.S military
personnel who have been accused of war crimes
in the last eight years, fewer than 60 of them
have been convicted However, the U.S
Supreme Court opened the door for further
judicial proceedings brought against the U.S
military when it ruled that persons detained at
the U.S Naval Facility at Guantanamo Bay,
Cuba, have a constitutional right to seekHABEAS
CORPUS review regarding the legality of their
detention Boumediene v Bush, 553 U.S —, 128
S Ct 2229, 171 L Ed 2d 41 (2008)
Traditional War Crimes
Traditional war crimes consist of those acts that
violate the accepted customs, practices, and laws
of warfare that have been followed by civilized
nations for centuries These rules of war
prescribe the rights and obligations of
belliger-ent states, prisoners of war, and occupying
powers, as well as those of combatants and
civilians They also set restrictions on the types
of weapons that belligerents may employ during
combat Soldiers, officers, and members of the
high command can all be held responsible for
violating the accepted customs and practices of
war, regardless of whether they issue an order
commanding an illegal act or simply follow
such an order
Soldiers, officers, and the high command
can also be held responsible for failing to
prevent war crimes Military personnel in a
position of authority have an obligation to
instruct their subordinates on the customs and
practices of war and a duty to supervise and
oversee their conduct on the battlefield A
military commander who neglects this duty
can be punished for any war crimes committed
by his troops Following World War II, for
example, Japanese General Tomoyuki
Yama-shita was prosecuted and sentenced to death by
a U.S military tribunal in the South Pacific for
dereliction of duty in “failing to provide
effective control” of his troops who had
massacred, raped, and pillaged innocent
noncombatant civilians and mistreated U.S
prisoners of war in the Philippines (Christenson
1991, 491)
Recent Developments For more than five centuries, the rules of war have been applied to military conflicts between countries Until the last decade, many observers contended that the rules of war do not govern hostilities between combatants in civil wars that take place wholly within the territorial bound-aries of a single state However, during the 1990s, the UNITED NATIONS established two international military tribunals to investigate and prosecute war crimes that allegedly took place in the civil wars fought within Bosnia-Herzegovina and Rwanda
The two tribunals indicted soldiers and other combatants in both countries for com-mitting a litany of war crimes, including the torture of political and military enemies, the programmatic raping of women, and GENOCIDE Although the litigants questioned the jurisdic-tion and authority of each tribunal, trials proceeded against certain defendants who had been captured Thus, the theater in which war crimes can be committed and punished has expanded from international military conflicts
to intra-national civil wars
In 1998 the United Nations established the
INTERNATIONAL CRIMINAL COURT (ICC) with the signing of the Rome Treaty The court, which came into force on July 1, 2002, is the first permanent international criminal tribunal
Many countries over the course of a number
of years expressed the need for such a perma-nent court, but politics during theCOLD WARand other factors prevented its creation The treaty, however, received widespread international support upon its signing The ICC is empow-ered to hear three major types of cases, including genocide, crimes against humanity, and war crimes
The United States originally signed the treaty on December 31, 2000, but did so with reservations One claim was that the court could
be used to prosecute troops based on the political motivations of other nations The United States introduced an amendment to the treaty that would have given U.N security council members the right to VETO certain prosecutions, but the amendment was rejected
Even when President BILL CLINTON signed the
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