Document Type



Forthcoming in volume 32 of the Cornell Journal of Law and Public Policy (2023).


In a letter recently sent to the Department of Defense General Counsel, two lawmakers – Representative Sara Jacobs and Senator Dick Durbin – present a number of suggested revisions to the DoD Law of War Manual. In Part I, this Article conducts a critical assessment of the substantive suggestions. By adopting an approach that emphasizes maintaining the delicate balance between humanitarian considerations and military necessity, the critical assessment concludes that the suggested revisions to the Manual are inadvisable.

Part II then considers the Jacobs-Durbin letter in the broader context of public discourse and separation of powers. This component of the inquiry determines that the letter represents an unwarranted attempt by legislators with no actual authority or apparent individual expertise to infringe upon commander in chief authority vested in the executive by virtue of Article II of the U.S. Constitution. The Article then concludes by reflecting on the proper means by which legislators interested in engaging with the DoD on matters related to the Law of War Manual should consider connecting with the General Counsel in the future.

Date of Authorship for this Version



Department of Defense Law of War Manual, Dick Durbin, Sara Jacobs