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Category Archives: Law
Quotes on Law, War, and Liberty
Adams, Samuel: "Contemplate the mangled bodies of your countrymen, and then say, What should be the reward of such sacrifices? Bid us and our posterity bow the knee, supplicate the friendship, and plow, and sow, and reap, to glut the avarice of the men who have let loose on us the dogs of war to riot in our blood and hunt us from the face of the earth? If ye love wealth better than liberty, the tranquillity of servitude greater than the animating contest of freedom–go from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you.
Posted in Law
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DoD Government Ethics Resources
5 CFR 2635
U.S. Office of Government Ethics
OGE Legal Advisories Library
DoD Standards of Conduct Office
DoD SOCO Library of Ethics Laws and Regulations
(including the Joint Ethics Regulation)
Freedom of Information Act & Privacy Act of 1974
The Freedom of Information Act: 5 U.S.C. 552
The Privacy Act of 1974: 5 U.S.C. 552a
DOJ FOIA Reference Page // This site includes:
— The useful FOIA Guide & Privacy Act Overview, published by DOJ yearly.
— Digest of FOIA-related litigation
— Numerous DOJ-level FOIA policy memos
AGENCY FOIA PAGES
(Great sources for agency-specific regulations, plus reading rooms of previously released records…)
DoD FOIA Page
DoD Inspector General FOIA Page
U.S. Air Force FOIA Page
USSOCOM FOIA Page
CIA FOIA Page
Foundational Principles – Funding U.S. Military Ops
CONSTITUTIONAL PRINCIPLES
A. President's Power.
1. "The President shall be the Commander in Chief of the Army and Navy of the United States…." U.S. Const. Art. II, § 2, cl. 1.
2. "He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls…." U.S. Const. Art. II, § 2, cl. 2.
3. "[H]e shall receive Ambassadors and other public Ministers…." U.S. Const. Art. II, § 3.
B. Congress' Power.
1. "No money shall be drawn from the Treasury, but in Consequence of Appropriations made by law…." U.S. Const. Art. I, § 9, cl. 7.
2. "The Congress shall have the Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States…." U.S. Const. Art. IV, § 3, cl 2.
"An effective foreign policy requires more than ideas and pronouncements. It requires institutions, agencies, people and money, and Congress controls them all. Through the authorization and appropriation process, Congress sets the terms of commerce; it provides military forces and intelligence capabilities; and it establishes the conditions for development assistance, security support programs and U.S. participation in international organizations…. Hardly any important executive branch decision is taken without consideration of the reaction in Congress." Philip R. Trimble, The President's Foreign Affairs Power, 83 AM. J. INT'L. LAW 750 (1989).
Legislative Controls: Of the three general limitations – Purpose, Time, and Amount. The Purpose Statute is the fiscal law control most commonly raised in legal analysis of issues in U.S. military operations.
1. 31 U.S.C. § 1301(a) provides:
Appropriations shall be applied only to the objects for which the appropriations were made except as otherwise provided by law.
2. Three-Part Test for a Proper Purpose. In 1984, the Comptroller General specifically addressed numerous funding issues within the Ahuas Tara military exercises conducted in Honduras. Accordingly, the Comptroller General reiterated the three factors that determine whether to expend a specific appropriated fund. In this case, the Comptroller General was
reviewing the use of Army O&M funds or whether other appropriated fund sources should have been used, such as funding through the Department of State. The three factors are the following:
a. The expenditure must be reasonably related to the purposes for which the appropriation was made. (In other words more commonly cited, the expenditure of an appropriation must be for a particular statutory purpose, or necessary and incident to the proper execution of the general purpose of the appropriation.)
b. The expenditure must not be prohibited by law.
c. The expenditure must not fall specifically within the scope of some other category of appropriations. This last requirement applies even if the more appropriate funding source is exhausted and therefore unavailable.
See The Honorable Bill Alexander, B-213137, 63 Comp. Gen. 422 (1984)
THE NEED FOR EXPRESS LEGAL AUTHORITY.
A. General. "The established rule is that the expenditure of public funds is proper only when authorized by Congress, not that public funds may be expended unless prohibited by Congress." United States v. MacCollom, 426 U.S. 317 (1976).
B. Article II Operations: Inherent Authority? See, e.g., R. Rosen, Funding Non- Traditional Military Operations: The Alluring Myth of a Presidential Power of the Purse, 155 MIL. L. REV. 1 (1998); W. Banks & P. Raven-Hansen, NATIONAL SECURITY LAW & THE POWER OF THE PURSE 166 (1994).
(Content derived from the 2d Operational Contracting Deskbook, US Army JAG School)
U.S. Laws and Regulations on International Agreements
Agreements between elements of the U.S. Government and representatives of foreign governments are subject to the Case-Zablocki Act, and several implementing regulations.
The Case-Zablocki Act itself can be found in 1 USC 112a and 1 USC 112b.
Regulations implementing the Case-Zablocki Act include:
22 CFR Part 181, Coordination, Reporting, and Publication of International Agreements
DoD Directive 5530.3, International Agreements
CJCS Instruction 2300.01D, International Agreements
National Defense Authorization Acts
(Primarily for Defense Department activities)
Info on pending NDAA legislation from the House Armed Services Committee.
NDAA FY 2022 (Public Law 117-81)
NDAA FY 2021 (Public Law 116-283)
NDAA Legislation Archive (from DoD's Washington Headquarters Service)
Posse Comitatus
18 USC 1385The Posse Comitatus Act of 1878 / 18 USC Sec 1385:
"Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both."
DoD Instruction 3025.01, Defense Support of Civilian Law Enforcement Agencies
RAND Overview of the Posse Comitatus Act
Topical Resources
FOIA / PA
Federal Advisory Committee Act Database
The Military Commander and the Law (2021, Air Force)
Fiscal Law
Foundational Principles – Military Fiscal Law
Appropriations Legislation
GAO Redbook
Opinions of the Comptroller General
Defense FAR Supplement
Intelligence Law
Intelligence Community Legal Reference Book
Military Claims Reference Manual
DoS Country Reports on Human Rights Practices
U.N. Security Council
Operations Law
DoD Law of War Manual
The Law of Air, Space, and Cyber Operations (2020)
Commanders Handbook on the Law of Naval Operations (2022)
Commanders Handbook on the Law of Land Warfare (2019)
Treaties on Means & Methods of Warfare
ICRC IHL Database
Nuclear Weapons Accident Response Procedures – DOD 3150.08-M