Charles Dunlop – Duke Law School’s Center for Law, Ethics and National Security

Charles Dunlap, director of Duke University Law School’s Center for Law, Ethics and National Security and retired Air Force Major General, spoke to the club on issues of the law and national security.

In earlier decades, academic study and scholarship of national security issues were largely in the domain of the political scientists. More recently, driven by rising threats of asymmetrical warfare and terrorism, legal scholars increasingly give attention to such matters as ethics and national security, human rights, rules of engagement, the laws of war, and military-civilian relations. Duke University pioneered in this field when, under the leadership of the late Law School Professor Robinson Everett, the father of club member Rob Everett, the Center on Law, Ethics and National Security was established in 1993. Having served as Chief Judge of the

U. S. Court of Appeals for the Armed Forces, Professor Everett believed the law school should focus some attention on ethics and national security. According to Dunlap’s count, some 130 law schools now offer courses dealing with national security. Back in the dark ages when I was in the inaugural class of International Studies majors at UNC, I don’t recall issues of ethics ever entering into courses on national security.

General Dunlap is one of the Center’s two professors. The other is Professor Scott Silliman whom President Obama has recently nominated—pending Senate confirmation—to the U. S. Court of Military Commission Review, the appellate court that reviews cases involving defendants held atGuantanamoBay.

Major General Dunlap retired from the Air Force in 2010 after 34 years of distinguished service. In the four years prior to retirement, he served as Deputy Judge Advocate General. In addition to his service related duties, Dunlap compiled an impressive academic résumé. He is the author of numerous articles on law and warfare in leading legal and international affairs journals. A 2001 essay on ―lawfare‖ –the use and misuse of law to achieve operational objectives—has been widely influential among scholars interested in the law and national security. A recent article deals with legal issues in cyberwar.

General Dunlap’s courses at Duke Law School deal with such issues as self-defense in combat, humanitarian intervention, non-state combat threats, use of force in space, prosecution of terrorists in military courts versus civilian courts, and public accessibility to national security information. Many of these issues are, quite properly, the subject of reasoned public dialogue and opinion. In one of his courses, Professor Dunlap brought in Special Forces troops fresh back from theMiddle Eastto give firsthand accounts of the tension between ―the law‖ (italics mine) and use of force. To me, what’s at stake is theory balanced against reality.

Recent developments have introduced many legal issues not settled by case law or common sense agreement: remotely controlled drone attacks especially when used off battlefields, use of security or military contractors, and cyberspace defensive or offensive attacks. One really mind-blowing issue raised by General Dunlap is the development of fully autonomous weapons systems that decide—on their own!!—whom to attack. One matter that needs a decision is the matter of a detention facility for enemies who pose a real and long term threat to theUnited States.

On the issue of civilian-military relations, Professor Dunlap cautioned that some military personnel who have served abroad develop jaundiced views of democracy at home. I am paraphrasing here and don’t want to insert words into General Dunlap’s mouth but this is the essence of what I heard him saying: Having been given considerable latitude to develop civilian institutions in places such as Iraq and Afghanistan, some servicemen discover the seeming decision-making paralysis at home and wonder if they should not be making autonomous decisions in our democratic society. Such reasoning obviously threatens the core of democratic institutions.

A question regarding the legality of a targeted drone killing inYemenof an American citizen linked to terrorism, Anwar Awlaki, without due process was raised. In response, Professor Dunlap cited a World War II ruling by the Supreme Court that sanctioned the trial and execution of an American citizen who was one of several German saboteurs who landed on American shores intending to sabotage various war related industries.

An annual conference sponsored by the Center for Law, Ethics and National Security will be held on April 13-14, 2012. Open to the general public, this conference will bring noted speakers to the Duke campus. For further information, see the Center’s website at /www.law.duke.edu/lens. . . . Submitted by Allen Cronenberg

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