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Books by Kevin Govern

o Explores the controversial legal and ethical problems raised by cyber war, critically assessing... more o Explores the controversial legal and ethical problems raised by cyber war, critically assessing the received wisdom about its legal implications.
o Examines the complex questions of which legal regimes apply to cyber attacks, whether principles of humanitarian law work in cyber warfare situations, and how these principles can be translated into the operational reality
o Provides an unique analysis of the foundational questions of the legality and morality of cyber warfare
o Contributions from a wide range of experts in the field

Chapter 13, Kevin H. Govern: OPERATION NEPTUNE SPEAR: WAS KILLING BIN LADEN A LEGITIMATE MILITARY... more Chapter 13, Kevin H. Govern: OPERATION NEPTUNE SPEAR: WAS KILLING BIN LADEN A LEGITIMATE MILITARY OBJECTIVE?

My assertion in this chapter is that bin Laden was a legitimate military target, and that the decision-makers involved in his killing had thoroughly considered the range of options available to stop bin Laden from further terroristic acts, and were warranted in the decision to lean towards targeted killing in lieu of a capture operation. I thus conclude that those who carried out the killing were within their scope of authority and responsibility for killing rather than for capturing bin Laden. Th e
structure of the operation, then, and the set of moral prohibitions operating on any such plan, should in theory not require new rules or new law of war prescripts. This holds true, despite the short- and long-term implications of this use of force. What is critical is an abiding and firm moral force underlying this and every other form of warfare, regardless of any minor or significant changes to the legal or operational
framework in which it may be undertaken.
Section I will examine the political and military necessity considerations that gave rise to the Neptune Spear “capture or kill” decision-making process at the very highest echelons of the Executive Branch, with the evolution of political will,
expressed into military directive, reflecting a careful analysis of authority and opportunity to end bin Laden’s reign of terror. This will afford us an opportunity to distinguish between those who can be the permissible subject of “targeted killing”
and those who cannot. Section II considers the operational and legal foundation for undertaking a war against one person via targeted killing. As to the targeted killing of bin Laden, this section will show the operation to be on a continuum
of legitimate, operational options, from pursuit and capture under warrant-based targeting. Section III examines the moral foundations of foregoing war in favor of more isolated military operations, such as is involved in targeted killing. Section
IV concludes with an examination of how the polarizing paradigm of Neptune Spear affects not only current contexts of counterterrorism operations but how it will shape U.S. and international political will to accept targeted killing over capture
and prosecution, not just out of political pragmatism and military necessity, but as an emergent norm of customary international law.

Chapter 16, The Legal Way Ahead Between War and Peace by Kevin H. Govern This chapter is written... more Chapter 16, The Legal Way Ahead Between War and
Peace by Kevin H. Govern

This chapter is written from the perspective of the military operational lawyer in an attempt to explain where he fits in this world, from both the top-down and bottom-up
perspectives in linking military operations to U.S. foreign policy. There are three issues hidden in this perspective. The first is tied to ideas about the changing nature of armed conflict. The operational lawyer currently functions most of the time in low-intensity armed conflicts like insurgencies or peacekeeping, precisely because that is the business his battlefield commander “clients” now do most of the time. So his professional world may be focused more often on civil affairs than traditional targeting law as such. The second
is that his legal capacity is an advisory one (e.g., is not often devoted to running courts-martial or military commissions). And most of this advisory capacity is dedicated to planning military operations rather than their execution as such. Finally, combining advisory capacity with the point that “small wars” predominate, this version of armed conflict law is an amalgam of domestic and international law focusing currently on nontraditional questions like protection of NGO (nongovernmental organization) personnel providing humanitarian assistance, or how best to support civil authorities trying to reconstitute local courts and government in the face of targeted assassinations in the course of an insurgency. So the border seems porous between traditional military operations and
something akin to law enforcement, and in any case involves a high degree of contact and often cooperation with nonmilitary bodies (i.e., foreign governments, the U.S. government interagency process, and NGOs).

For the balance of this chapter, I look first at the current taxonomy of armed conflict and the concept that it may be an uneasy fit with traditional ideas about “war.” Thereafter,
we examine how this affects military doctrine in supporting U.S. foreign policy generally, with consequent effects on the military operational lawyer. Finally, we look at the activities of military operational lawyers at the practical level in terms of planning
operations. The hope is to provide some insight into what and how military operational lawyers actually make decisions touching upon the LOAC (law of armed conflict) in their
workaday world.

Papers by Kevin Govern

JURIST Guest Columnist Kevin Govern, of Ave Maria School of Law, considers the ramifications of t... more JURIST Guest Columnist Kevin Govern, of Ave Maria School of Law, considers the ramifications of the recent Arab League agreement to form a joint force in the context of historic efforts on joint defense and economic cooperation

JURIST - Forum, Sep 3, 2014

JURIST Guest Columnist Kevin Govern of Ave Maria School of Law in Naples, Florida, discusses the ... more JURIST Guest Columnist Kevin Govern of Ave Maria School of Law in Naples, Florida, discusses the Department of Defense Excess Property Program—commonly known as the '1033 Program'—under scrutiny for the recent events in Ferguson, Missouri and concludes that this will result in stricter delineations concerning military cooperation than ever before.

38 Nova L. Rev. 43, 2013

Hollywood East! The honorific title bestowed upon a bewitching state known for her sandy beaches,... more Hollywood East! The honorific title bestowed upon a bewitching state known for her sandy beaches, warm winter days, and mosquito-filled Everglades. Florida and the Film Industry: A tale of an alluring titan and a powerful behemoth behaving like two lovers enmeshed in an affair, complete with wooing, courting, and rebuffs. A relationship that has lasted over a century and continues to blossom amidst healthy competition, tax incentives, innovative legislation, and cooperation. Florida’s commitment to a thriving film industry — through its legislature, government administrative agencies, and incentives — has allowed its economy to grow and its citizenry to flourish, while showcasing Florida to the world.

This article chronicles the development of the Florida film and entertainment industry, from its inception to the present day, as a product of environment, opportunity, economics, law, and policy. The film and entertainment industry is one of the most significant contributors to Florida’s local, regional, and global image, through depiction of its people, cities, industry, and nature. As an ever-growing contributor to the state’s economy through job creation, service industry revenues, and tax collections, Florida’s relationship with the film and entertainment industry has gone from an ad hoc approach to a carefully strategized, multi-year effort, fueled by the Florida Film and Entertainment Industry Financial Incentive Program, to encourage the use of the state as a location for all facets of digital, film, and television production.

This article will address in Part I the earliest history of film in Florida from the late nineteenth century birth and flourishing through the 1917 transfer to California and revitalization during World War II. Part II considers the state’s economic, political, and legal enticements for the film industry to grow in the state and to match the public relations campaign to draw tourism to the Sunshine State. Part III outlines the essence of 1950s blockbuster hits that gave impetus to rules and laws to solidify the state’s relationship with the film industry. As commented upon in Part IV, Florida’s compelling call to the industry reached New York City and beyond, bringing rare talent that would further expand the industry’s reach and hold in Florida. Worthy of Part V’s particular focus, mesmerizing Miami reached international recognition as a thriving hub for both television and film from the 1950s onward, and industry contractual practices there set the standard for the entire film and television industry thenceforth. Part VI summarizes the background, legislative authority, and practical efforts of the Governor’s Office of Film and Entertainment, followed by the tax incentives under state and federal law which caused the film and television industry efforts in Florida to expand exponentially in the twenty-first century onward in Part VII; specifically with some of the most notable progeny of this effort and their value to state, regional, and the national economies showcased in Part VIII. Part IX highlights how past is prologue for Florida film and television, why current state and federal initiatives will prevent major production efforts from becoming runaway boons to other states and countries, and the demonstrable economic benefits those laws and policies have already produced for Florida in particular, and the United States in general. In conclusion, Part X predicts how faithfulness and fidelity to the film and television industry will continue to reap benefits in a multi-billion dollar relationship continuing into its second century, with over 120 films and television shows to its credit and counting.

NAFTA: Law and Business Review of the Americas, Vol. 19, No. 4, 2013

This article will assess the roles and responsibilities of Special Operations Forces (SOF) within... more This article will assess the roles and responsibilities of Special Operations Forces (SOF) within Mexico, as an active proponent of a so-called "smart power" national security strategy. In particular, it will outline the economic, political, and military challenges faced in Mexico, and specifically how and why SOF, under the new Special Operations Command Northern Command (SOCNORTH), should become the U.S. force of choice for promoting the rule of law and human rights in Mexico. With the goals of the U.S. military in mind, questions will necessarily arise as to "what success looks like" for both the United States and Mexico and the roles of each in joint and combined civil-military initiatives. Concluding comments reflect on how these forces must model "what right looks like," and the imperative that SOF operations in Mexico meet legal and doctrinal criteria for successful mission accomplishment.

1 U. Balt. J. Int'l L. 154 et. seq. (2013).

This article will assess the roles and responsibilities of Special Operations Forces (SOF) within... more This article will assess the roles and responsibilities of Special Operations Forces (SOF) within the newly created U.S. Africa Command (AFRICOM) as an active proponent of a so-called “smart power” national security strategy. In particular, it will outline the economic, political, and military challenges faced in Africa; specifically, how and why SOCAFRICA is the U.S. force of choice for promoting human rights and rule of law in Africa. With the goals of the U.S. military in mind, questions will necessarily arise as to “what success looks like” for both the U.S. and African nations, and the roles of each in joint and combined civil–military initiatives. The concluding comments reflect on how these forces must model “what right looks like,” and provide specific modeling failures, and the consequences when that modeling did not take place.

Arizona Journal of International & Comparative Law Vol. 29, No. 3, at 477 et seq., 2012

This article examines warrant-based targeting and key lessons learned with respect to such operat... more This article examines warrant-based targeting and key lessons learned with respect to such operations, and proposes future locales where it might be effectively employed. Part II is an initial review of historical, warrant-based targeting examples that follows commentary on legal and operational matters making warrant-based targeting both necessary and proper in Iraq from 2009 onward. Part III discusses specific tactics, techniques, and procedures (TTP) involved in warrant-based targeting in Iraq, now carried over to operations in Afghanistan. From a broader perspective, and in order to apply warrant-based targeting beyond Iraq and Afghanistan, Part IV’s key lessons regard military cooperation with domestic law enforcement and judicial authorities. These lessons include: the necessity for proper collection and processing of forensic evidence; the inherent dilemma of military forces performing law enforcement roles; and the necessity to overcome a mindset that the military reaches “mission accomplished” status merely when it obtains the requisite warrant, collects evidence, and then carries out an arrest. Part V establishes what, in a world of ever-changing circumstances, the rule of law has come to mean and why warrant- based targeting matters to advancing the rule of law. Concluding comments in Part VI consider why this methodology is a meaningful, albeit complicated, alternative to the expediency of targeted killing.

JURIST - Forum, Feb 11, 2013

JURIST Guest Columnist Kevin Govern of the Ave Maria School of Law says says the US must pursue a... more JURIST Guest Columnist Kevin Govern of the Ave Maria School of Law says says the US must pursue a full spectrum of "smart power"
capabilities in Africa, to include but not be limited to the use of drones for surveillance or targeted killing strikes...

JURIST Guest Columnist Kevin Govern of the Ave Maria School of Law says that determining the impa... more JURIST Guest Columnist Kevin Govern of the Ave Maria School of Law says that determining the impact of the recently announced Strategic Partnership Agreement between the US and Afghanistan requires a look into the many interests vested in the region...

JURIST Guest Columnist Kevin Govern of Ave Maria School of Law says that the pending withdrawal o... more JURIST Guest Columnist Kevin Govern of Ave Maria School of Law says that the pending withdrawal of US forces from Iraq and the challenges to maintaining security in that country and in the region requires a new strategy in dealing with the region to address security concerns amid likely cuts to the US defense budget...

This Article will survey the significant legal, political, and operational challenges that the co... more This Article will survey the significant legal, political, and operational challenges that the command has already encountered in its relatively short existence, the challenges which lie ahead for AFRICOM, and why AFRICOM willneed to further adapt its cooperation with African allies and quantify “value-added” capabilities if it is to successfully provide and promote allied capabilities. Part 1 will examine Africa as an “arc of instability,” while Part 2 will describe how U.S. centralized diplomatic and political strategy led to the creation of AFRICOM and the advancement of both U.S. and African economic, security, and development policies. The impact of the “resourcing-to-requirements” differential (or the
disparity in the resources AFRICOM has versus what it must do with them) is discussed in Part 3. The uncertainty created by this U.S. action, as well as its implications on future humanitarian efforts in the region is explained in Part 4, with
further discussion on how this perceived uncertainty will affect African and non- African nations’ reactions to AFRICOM in Part 5. Finally, what African nations will do about and with AFRICOM now and in the future is described in Part 6. This Article, therefore, addresses the issues and obstacles AFRICOM is likely to encounter, and attempts to discover the potential solutions offered by law and policy that would aid the organization in successfully accomplishing its stated missions, and advancing an “arc of stability” in Africa.

Chapter 16, The Legal Way Ahead Between War and Peace by Kevin H. Govern This chapter is written... more Chapter 16, The Legal Way Ahead Between War and
Peace by Kevin H. Govern

JURIST - Forum, Sep 3, 2014

38 Nova L. Rev. 43, 2013

NAFTA: Law and Business Review of the Americas, Vol. 19, No. 4, 2013

1 U. Balt. J. Int'l L. 154 et. seq. (2013).

This article will assess the roles and responsibilities of Special Operations Forces (SOF) within... more This article will assess the roles and responsibilities of Special Operations Forces (SOF) within the newly created U.S. Africa Command (AFRICOM) as an active proponent of a so-called “smart power” national security strategy. In particular, it will outline the economic, political, and military challenges faced in Africa; specifically, how and why SOCAFRICA is the U.S. force of choice for promoting human rights and rule of law in Africa. With the goals of the U.S. military in mind, questions will necessarily arise as to “what success looks like” for both the U.S. and African nations, and the roles of each in joint and combined civil–military initiatives. The concluding comments reflect on how these forces must model “what right looks like,” and provide specific modeling failures, and the consequences when that modeling did not take place.

Arizona Journal of International & Comparative Law Vol. 29, No. 3, at 477 et seq., 2012

JURIST - Forum, Feb 11, 2013

Journal of Homeland Security and Emergency Management, Jan 1, 2009

JURIST Guest Columnist Kevin Govern of Ave Maria School of Law says that the recent actions again... more JURIST Guest Columnist Kevin Govern of Ave Maria School of Law says that the recent actions against U.S. Navy Captain (Capt.) Owen Honors is a regrettable redux of the Las Vegas, NV Tailhook Association scandal of 1991. Still, this incident may reinvigorate the Department of Defense's efforts to promote dignity and respect for all service-members, to foster a culture of accountability, and to promote and to hold those in leadership positions consistent with the highest standards of moral and ethical conduct....

JURIST Guest Columnist Kevin Govern of Ave Maria School of Law says that the death of Muammar Gad... more JURIST Guest Columnist Kevin Govern of Ave Maria School of Law says that the death of Muammar Gaddafi and one of his sons exemplifies an emerging trend towards the use of targeted and extrajudicial killings instead of attempts to capture and prosecute...

Part I of this Article takes a brief tour through military history on the consistent use of merce... more Part I of this Article takes a brief tour through military history on the consistent use of mercenaries through the ages, which Peter Singer illuminates masterfully in Corporate Warriors. Next, a brief overview on the binding nature (or not) of international custom and treaty is explored in Part II and then the codifications of international law are taken up in Part III, beginning with the Hague and Geneva Conventions. Several United Nations (“U.N.”) instruments are analyzed for their efficacy in changing the long-standing customary international law on the use of mercenaries and whether or not each is applicable to PMF contractors. Part IV closes out the Article by discussing alternative bodies of domestic law that provide criminal accountability, including the case of Alaa Mohammad Ali, a civilian contractor working in Iraq who was convicted on June 23, 2008 by court martial under the recent changes to the Uniform Code of Military Justice (“UCMJ”).

Professor Kevin Govern, and Professor and Board of Governor Ronald Rychlak, and Professors Brian ... more Professor Kevin Govern, and Professor and Board of Governor Ronald Rychlak, and Professors Brian Scarnecchia and Richard Meyers, all affiliated with Ave Maria School of Law, discussed their editorial and authoring efforts for the books “Cyberwar: Law and Ethics for Virtual Conflicts” and “American Law From a Catholic Perspective” at an April 22, 2015 Book Conference at the law school.

Edited by Jens Ohlin, Kevin Govern and Claire Finkelstein, Cyber War examines one of the most dangerous innovations of recent years, and a significant threat to national security. Cyberweapons can imperil economic, political, and military systems by a single act, or by multifaceted orders of effect, with wide-ranging potential consequences. Cyberwarfare occupies an ambiguous status in the conventions of the laws of war. This book addresses Ethical and legal issues surrounding cyberwarfare by considering whether the Laws of Armed Conflict apply to cyberspace and the ethical position of cyberwarfare against the background of our generally recognized moral traditions in armed conflict. The book explores these moral and legal issues and examines the key principles of jus in bello to determine how they might be applied to cyber conflicts. The distinction between civilian and combatant in this context and the level of causation necessary to elicit a response are studied and the specific operational realities implicated by particular regulatory regimes are analyzed.

Edited by Ronald J. Rychlak, American Law from a Catholic Perspective is one of the most comprehensive surveys of American legal topics by a gathering of major Catholic legal scholars. Contributors explore, among other subjects, bankruptcy, bioethics, corporate law, environmental law, ethics, family law, immigration, intellectual property, international human rights, labor law, legal education, legal history, military law, the philosophy of law, property, torts, and several different aspects of constitutional law, including religious freedom, privacy rights, and free speech.

To maintain global repute for integrity, leaders need to keenly understand the operating environm... more To maintain global repute for integrity, leaders need to keenly understand the operating environment in which they are and want to be located; recognize legal obligations, cultural expectations and ethical dilemmas; avoid conflict when possible; balance the interests of various stakeholders; and develop strategies for legally, morally, and ethically influencing partners.

This paper will highlight not only domestic and international legal obligations but also guiding ethical and moral principles critical to procurement and acquisition integrity. Most common ethics and procurement integrity issues can be avoided by avoiding circumstances of public officials using their office for private gain, treating all members of the public with fairness and impartiality, and preserving the notion of public service as a public trust.

All involved in government procurement and acquisition must employ what business executive Karen Benjack Glatzer defines as “[t]he ability to get out of your . . . comfort zone and navigate smoothly through the cultural nuances of your specific area of responsibility;” that is, “cultural astuteness.” Organizational consultant Kevin Hummel asserts a critical component of “cultural astuteness” as being able to “move your goals forward in a way that is not seen as self-serving . . . through a combination of direct communication, influence, and asking other people to be your advocate or champion.” When values collide, it is important to understand the consequences of drawing the line and standing on principle

Kevin Govern, The Legal Way Ahead Between War And Peace(Abstract)

News Professor Kevin Govern interviewed on The Drew Mariani Show regarding $23.6 billion ver... more News

Professor Kevin Govern interviewed on The Drew Mariani Show regarding $23.6 billion verdict in big tobacco lawsuit in Florida. Go to July 23 on calendar at http://relevantradio.com/audios/the-drew-mariani-show and click on Hour 3 Stream.

Segment starts at 29:25 mark.

This article will assess the roles and responsibilities of Special Operations Forces (SOF) within... more This article will assess the roles and responsibilities of Special Operations Forces (SOF) within the newly created U.S. Africa Command (AFRICOM) as an active proponent of a so-called "smart power" national security strategy. In particular, it will outline the economic, political, and military challenges faced in Africa; specifically, how and why SOCAFRICA is the U.S. force of choice for promoting human rights and rule of law in Africa. With the goals of the U.S. military in mind, questions will necessarily arise as to "what success looks like" for both the U.S. and African nations, and the roles of each in joint and combined civil-military initiatives. The concluding comments reflect on how these forces must model "what right looks like," and provide specific modeling failures, and the consequences when that modeling did not take place.

These special discounted rates are made possible by the generous grants from the following sponso... more These special discounted rates are made possible by the generous grants from the following sponsors: $99 for PPMA Members* Register online at www.goldfarbfoundation.org This conference is designed for podiatric surgeons and non-surgical podiatric doctors, as well as podiatric residents.

Conference paper presentation on: “Warrant-Based Targeting:” Prosecution-Oriented Operations, Ad... more Conference paper presentation on: “Warrant-Based Targeting:” Prosecution-Oriented Operations, Advancing The Rule of Law, As A Legal and Moral Alternative To Targeted Killing©

Targeted Killings Law and Morality in an Asymmetrical World, Mar 1, 2012

In this chapter I take the killing of Osama bin Laden as a test case for considering the moral an... more In this chapter I take the killing of Osama bin Laden as a test case for considering the moral and legal status of intentionally killing individuals deemed a threat to national security, under conditions in which the object of the targeted attack is offered little or no opportunity to surrender to attacking forces. The target in such operations, in short, is treated as though he were a belligerent: a person placed on a kill list may be targeted in a way that would be legitimate if he were an enemy combatant. In such cases, we think of him as having no personal right to self-defense and we attempt to use the element of surprise to avoid affording him an opportunity to surrender or evade capture. But where we are targeting non-uniformed civilians, who do not possess all the trappings of an enemy combatant, is it legitimate to target them in the same open-ended way that we target co-belligerents? In particular, is it legitimate to target them in a way that deprives them of a right of surrender?

Section I will examine the political and military necessity considerations that gave rise to the Neptune Spear “capture or kill” decision-making process at the very highest echelons of the Executive Branch, with the evolution of political will, expressed into military directive, reflecting a careful analysis of authority and opportunity to end bin Laden’s reign of terror. This will afford us an opportunity to distinguish between those who can be the permissible subject of “targeted killing” and those who cannot. Section II considers the operational and legal foundation for undertaking a war against one person via targeted killing. As to the targeted killing of bin Laden, this section will show the operation to be on a continuum of legitimate, operational options, from pursuit and capture under warrant-based targeting. Section III examines the moral foundations of foregoing war in favor of more isolated military operations, such as is involved in targeted killing. Section IV concludes with an examination of how the polarizing paradigm of Neptune Spear affects not only current contexts of counterterrorism operations but how it will shape U.S. and international political will to accept targeted killing over capture and prosecution, not just out of political pragmatism.

On January 21, 2015, the Supreme Court issued its decision in Department of Homeland Security v. ... more On January 21, 2015, the Supreme Court issued its decision in Department of Homeland Security v. MacLean.

The question in this case concerns the Federal Whistleblower Protection Act, which prevents the government from terminating an employee for revealing “any violation of any law, rule, or regulation” or “a substantial and specific danger to public health or safety”--unless that revelation is "specifically prohibited by law." The question here is whether a federal air marshal’s disclosure that the Transportation Security Administration (TSA) had decided to cut costs by removing air marshals from certain long-distance flights was a disclosure “specifically prohibited by law.”

In an opinion delivered by Chief Justice Roberts, the Court held by a vote of 7-2 that the disclosure in this case was not “specifically prohibited by law.” The judgment of the United States Court of Appeals for the Federal Circuit was affirmed. The Chief Justice’s opinion was joined by Justices Scalia, Thomas, Ginsburg, Breyer, Alito, and Kagan. Justice Sotomayor issued a dissenting opinion, which was joined by Justice Kennedy.

To discuss the case, we have Kevin Govern, who is an Associate Professor of Law at the Ave Maria School of Law.

http://www.naplesnews.com/news/elections/group-focuses-on-getting-ballots-to-inmates\_70643530

On June 17, 2010, the Supreme Court announced its decision in Dillon v. United States. In this c... more On June 17, 2010, the Supreme Court announced its decision in Dillon v. United States. In this case, the court was asked whether 18 U.S.C. §3582(c)(2), which authorized courts to reduce a prison sentence in accordance with a retroactive amendment to the United States Sentencing Guidelines insofar as the new sentence fell within the new Guidelines’ range, also permitted further reduction pursuant to the holding in United States v. Booker, which treated the Guidelines as merely advisory.

In a 7-1 opinion delivered by Justice Sotomayor, the Court held that §3582(c)(2) required reductions to coincide with Sentencing Committee policy, and as the latter precluded reductions inconsistent with the Guidelines, the Booker holding was inapplicable. Since §3582(c)(2) was enacted to grant prisoners the benefits of retroactive sentencing amendments, other grounds for reducing sentences (such as the petitioner’s good behavior) were only relevant insofar as they helped a judge decide whether the prisoner should benefit from the new Guidelines, and did not permit further expansion of the sentencing range.

To discuss the case, we have Ave Maria School of Law Professor Kevin H. Govern.

On March 2, 2010, the Supreme Court announced its decision in Johnson v. United States. The quest... more On March 2, 2010, the Supreme Court announced its decision in Johnson v. United States. The question in this case was whether a prior state conviction for battery was a "violent felony" under the Armed Career Criminal Act, where battery under the state law at issue includes any unconsented touching. In a 7-2 decision delivered by Justice Scalia, the Court held that it does not because the Armed Career Criminal Act defines a violent felony as one that has as one of its elements the use of "force." The Court ruled that a state law that criminalizes unconsented touching includes some conduct that does not involve force, and thus force is not an element of the offense as required by the Armed Career Criminal Act.

To discuss the case, we have Ave Maria School of Law Assistant Professor Kevin Govern.

The Military Legitimacy Review http://militarylegitimacyreview.com/ (formerly The Military Legi... more The Military Legitimacy Review

http://militarylegitimacyreview.com/

(formerly The Military Legitimacy and Leadership Journal)

Informed Commentary on Might and Right

Military Legitimacy is about the balance between might and right. It is a relative concept that differs in times of war and peace. In wartime, national survival is paramount with defeat of the enemy by overwhelming military force the ultimate test of military legitimacy. In peacetime the legitimacy of military operations is governed by legal and moral standards and values in both the US and the area of operations. These standards and values are often in conflict, making the public support required for political and military legitimacy problematic. That was a painful lesson learned first in Vietnam and confirmed more recently in Iraq and Afghanistan.

The focus of The Military Legitimacy Review (formerly The Military Legitimacy and Leadership Journal of 2009 & 2010) is on peacetime military operations—those operations other than war such as counterinsurgency, stability operations and nation-building. Combat is often an integral part of peacetime military operations, especially in the early stages, but strategic success is more dependent upon achieving political objectives than military objectives, and superior military force is never a substitute for the lack of legitimacy. In fact, large deployments of US combat forces and the use of excessive force in hostile cultural environments can turn a military victory into political defeat.

Military legitimacy is based on public perceptions of military operations, so that it is a reflection of civil-military relations. Overseas religious and cultural conflicts are the most obvious threats to the legitimacy of US military forces, while in the US civil-military issues are more subtle but nevertheless real. That is because the US military is an authoritarian regime within a democratic society, and its communal values—such as concepts of duty and loyalty to the military mission—represent a potential threat to libertarian civilian values. And because the military controls the nation’s most coercive powers, there is the danger that an isolated military and conflicting military and civilian values could undermine civil-military relations and threaten the legitimacy of the US military.

The following topical categories will be used to organize papers, articles and commentary on the website (see sidebar):

1. Religion and culture as they shape values, law and public support as standards of military legitimacy.

2. Democracy, human rights and the rule of law in foreign policy and as standards of military legitimacy.

3. Military legitimacy and leadership and how they relate to civil-military relations

4. Civil affairs as an operational concept and a civil-military capability.

5. Lessons learned in legitimacy and how they shape the future.

The purpose of The Military Legitimacy Review is to facilitate the exchange of ideas among those interested in the interplay of might and right and the role of the military as the ultimate extension of foreign policy. It is our hope that the ideas expressed in the articles and opinions on this website will further the cause of peace and promote democracy, human rights and the rule of law as fundamental concepts of legitimacy throughout the world. Unfortunately, we have a long way to go, but we believe that the US military has a vital role to play in promoting a lasting peace, so long as our might is right.

Who are “we”—those who bring you The Military Legitimacy Review? We have all been military lawyers with experience in Special Operations Forces, whose doctrine has long embraced legitimacy as a primary operational principle. We all understand that military legitimacy involves much more than compliance with the law and we want others to understand the dynamics and central role of legitimacy in peacetime military operations.

De Oppresso Liber (Free the Oppressed)! Secure The Victory!

Kevin Govern, Editor-in-Chief

Rudy Barnes, Jr., Publisher and Managing Editor

Larry Rubini and David Gordon, Editorial Board