This Article reflects on the codes of conduct the United States has devised, and has improvised, during the last ten years of the Twilight War. As the polemics have subsided and policies are regularized for the long haul, I focus only on two major issues—codes for interrogating enemy captives and the code for defining the enemy. As “legal realists” have observed, legal doctrines rarely emerge from classrooms and often not even from courts. This is then a personal history of how these legal policies took shape and evolved. But one of the most important insights to take away from this historical episode was that the advocates for the radically new codes of conduct framed the issue as a legal question—substantively and bureaucratically. Instead of framing the question around what “should” be done, carefully inventorying prior U.S. and foreign experience in detention practices and interrogations and analyzing all the pros and cons, the issue was debated as one of what “can” be done. If it does nothing else, this episode should reveal the dangers implicit in this habit of thought.
The Essay also underscores the policy and even management value of well-defined, politically sustainable guidelines for secret operations to kill enemies and deal with captives. Because the government must entrust intelligence operatives with exceptional power, a fundamental social contract forms. Such a social contract is an essential foundation to granting intelligence agencies and military departments, with thousands of employees conducting many operations around the world, extraordinary powers to intercept communications, break laws in other countries, and even use lethal force to defend the country—all in secret. When the contract is broken, trust breaks down and all sides will lose.
An essential element of the theory of retribution has been missing from courts’ and legal scholars’ analyses. While they have outlined a number of varieties of the theory and fleshed out their nuances, courts and scholars have largely neglected to examine which harms flowing from a criminal offender’s conduct should be considered in determining that offender’s desert. The more remote harms caused by an offender’s conduct, such as the effects of his offenses on the families and friends of their victims or the effects of criminal conduct on society in general, are pervasive in communities across the nation. This Article takes a first look at this overlooked issue of the role that more remote harms should play in sentencing and asserts that accounting for these more remote harms under certain conditions would better reflect the basic tenets of harm-based retributivism—the theory at the heart of many sentencing schemes. The Article acknowledges some of the concerns that considering these harms raises and argues that a proximate causation analysis is essential to limit the harms considered in sentencing while acknowledging the full array of harms caused by criminal conduct. This notion of “proximate retribution” is necessary to rein in criminal liability under the theory.
Across numerous areas of the law—including family law, criminal law, labor law, health law, and other fields—when children are involved, maturity determinations are pivotal to outcomes. Upon reaching maturity, however defined, an individual has access to a range of rights not previously available and is expected to fulfill certain duties. Despite the central importance of maturity, the law’s approach to it has been to consider the concept of maturity in a piecemeal and issue-specific fashion. The result is a legal construct of maturity that is anything but consistent or coherent. For example, every state has a minimum age below which a child is considered not mature enough to consent to sex. However, if money is involved, more than forty states deem that child mature enough to have consented to sex for money and be charged with the crime of prostitution (even if the money is paid to a pimp and the child never sees it). This Article seeks to undertake a holistic assessment of the law’s approach to maturity.
Markers of maturity in the law frequently occur at different points in time. An examination of key indicators of maturity under the law reveals that the law is inconsistent, not only across issues but also within the same issues. Children are deemed mature enough to participate in the polity (e.g., vote) at a different age from when they are deemed mature enough to exercise independent economic power (e.g., work or contract), control their own bodies (e.g., engage in consensual sex), or assume adult social responsibilities (e.g., drink alcohol in public places).
In short, the law provides little clear guidance on how maturity should be understood and treated. Recent research on brain development and the work of cognitive psychologists provide some answers. To date, however, a significant consideration has been largely overlooked—cultural conceptions of maturity. Thus, this Article seeks to bring cultural perspectives on maturity into the dialogue. Ultimately, this Article aims to bring some clarity to the issue of maturity and examine whether cultural practices can inform the legal, policy, and moral questions in the law’s approach to maturity.