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Government 4396(CV): Law and War

Dr. Douglas C. Dow

Class Hours: MW 2:30-3:45PM (CB1.124)

Office: MP 3.206 Phone: 972-883-4934

Office Hours: MW 1-2PM and by appointment


Inter arma enim silent leges” / In the face of arms, the law falls silent.

– Cicero
"The laws will not be silent in time of war, but they will speak with a somewhat different voice." – William Rehnquist
Course Description:
Cicero’s famous words have come to exemplify the position that, during times of military conflict, the normal legal rules and constitutional guarantees are held in abeyance. Nevertheless, the idea that military necessity is in conflict with, and ultimately must trump, the rule of law has not gone unchallenged. The position of the Constitution of the United States, in this controversy, is ambivalent, as it makes no explicit provision for a blanket suspension of the rule of law during wartime, yet broadly defines the powers of the commander-in-chief. “Law and War” will explore the complex relationship between the rule of law and the powers to execute war, especially as it impacts the understanding of constitutional government in the United States.
In the five years since the 9/11 attacks, the United States has experienced a revolution, not only in the ways it conducts war, but in the arguments made for the legal justifications of war. Despite the novelty of the United States’ war on terrorism, the conflicts over the proper balances have deep juridical and historical contexts. Most courses in constitutional law course reserve a brief section for consideration of the separation of powers during wartime. However, the issue of war powers and an “emergency constitution” has the potential to reshape our understanding of the constitutional project itself, and deserves a more expansive, historically rich and theoretically contextualized analysis.
In order to explore the tensions between the exercise of war and the establishment of constitutional government bound by the rule of law, this course combines constitutional precedents, political and legal theory, and American history, as well as international law and politics. The reading will consist of many primary texts, including court cases, legal briefings, government documents, and contemporaneous scholarship, as well as secondary scholarship. While our attention will focus primarily upon the relationship between war and law in the United States, we will look at appropriate foreign examples for a comparative approach.

Course Requirements and Policies:

Attendance and Participation: An important requirement for this honors seminar will be active participation in class discussion, debate and analysis. Regular attendance is required, and the professor will take attendance for each class. Please bring to class each day the texts under discussion – we will be referring to particular passages regularly. As well, please bring a copy of the U.S. Constitution to class each day. Each student is expected to have completed the week’s readings before class. Be prepared to talk. Everyone will be expected to demonstrate civility and a respect for the thoughts, opinions and beliefs of others. Notes or summaries will not be provided for missed classes. All cellular phones, pagers, and other electronic noise-makers should be turned off during class.
Exams: There will be three take-home essay exams of between six to nine pages in length. Each paper will count as 30% of the final grade. All exam papers should have proper citations to the texts used. Papers may be turned in before the due date. Students are asked to submit a hard copy of the essay to the professor and an electronic copy to Essays will be graded on a 100-point scale. The following conversion chart will be used to translate numbers into letter grades

A: 94-100

A-: 90-93

B+: 87-89

B: 84-86

B-: 80-83

C+: 77-79

C: 74-76

C-: 70-73

D+: 67-69

D: 64-66

D-: 60-63

F: below 60 We will be using to guard against plagiarism for the précis. Each student must submit her or his paper to I have established an account for this class. For those who have never used this website before, on the homepage there is a brief tutorial on setting up your class account. You will need both your class ID # and class enrollment password. Be careful: the password is case-sensitive:
Class ID #: 1761535

Class Enrollment Password: emergency
Quizzes: Each class may begin with a brief quiz covering the readings that are required for each day. These quizzes will test recollection of the reading material and will aid as a starter for class discussion. There will be no make-ups for missed quizzes. The accumulation of quizzes, combined with attendance and participation, will account for 10% of the final grade.
Make-Ups: Deadline extensions on the take home exams will be given only in documented emergency situations and at the discretion of the professor.

Syllabus Changes: The professor reserves the right to amend this syllabus during the semester. Any changes will be announced in class, and students will be responsible for getting and following the new information.

Policy on Scholastic Dishonesty
Scholastic dishonesty will not be tolerated, and all student essays are expected to be the product of a student’s own work. Students who violate University rules on scholastic dishonesty are subject to disciplinary penalties, including the possibility of failure in the course and/or dismissal from the University. Since such dishonesty harms the individual, all students, and the integrity of the University, policies on scholastic dishonesty will be strictly enforced.

Any acts of plagiarism (representing the work of another as one’s own, which includes cutting and pasting from the Internet) invite possible disciplinary action. If students have any questions on what plagiarism means, they may consult a plagiarism tutorial found at To find out more about UTD policies and procedures regarding scholarly dishonesty and its consequences, please refer to Students with any questions or concerns are encouraged to contact the professor.

Books for Purchase
- Mark Tushnet (ed.) The Constitution in Wartime (Duke University Press, 2005)

- John Yoo: War by Other Means: An Insider’s Account on the War on Terror (Atlantic Monthly Press, 2006)

- Joseph Margulies. Guantanamo and the Abuse of Presidential Power (Simon and Schuster, 2006)

- Michael Byers. War Law: Understanding International Law and Armed Conflict. (Grove Press, 2006)

Each of the following texts can be purchased at the University Book Store (on campus) and at Off Campus Books (561 W. Campbell Rd. #201, Richardson, TX 75025; ph. 972-907-8398). All other readings will be distributed in one of three ways: 1) Many are available free on the web. In such cases, I have given the web address right below the article citation. In many cases, you must be logged onto the UTD library’s website to access the articles. 2) JSTOR. JSTOR is a large online depository of academic journals. To access JSTOR you must either use a computer in the UTD library, or be logged onto the library’s website. 3) A handful of articles or documents will either be emailed to you by the professor, or handed out in class.

Reading and Discussion Schedule

War and the Rule of Law: Basic Concepts

M, Jan. 8; W, Jan.10


- Why is the division and exercise of war powers such a difficult element of any constitutional system of government? How might reaction or overreaction to crises threaten the status of a democratic republic?

- What are some of the most fundamental concepts associated with the intersection of law and war?

- Mark E. Brandon. “War and the American Constitutional Order” in The Constitution in Wartime. pp. 11-38.

- Mark Tushnet. “Emergencies and the Idea of Constitutionalism” in The Constitution in Wartime. pp. 39-54.

Dividing War Powers: Frameworks / Precedents in the Early Republic

W, Jan.17; M, Jan. 22


- What were the concerns and arguments of the Founders, regarding military authority, both in the Philadelphia Convention, and during the Ratification Debates?

- What were the monarchical and colonial experiences that helped to shape the Framer’s complex division of power?

- What were some of the earliest precedents concerning the application of the war powers?


- Charles A. Lofgren. “War–Making under the Constitution: The Original Understanding.” 81 The Yale Law Journal (March 1972) pp. 672-702. [JSTOR]

- Louis Fisher. “Unchecked Presidential Wars.” 148 University of Pennsylvania Law. (May 2000) pp. 1637-1672. [JSTOR]
- John C. Yoo. “The Continuation of Politics by Other Means: The Original Understanding of War Powers.” 84 California Law Review (March 1996), pp. 241-256. [JSTOR]
- Federalist Papers #s 41, 69

The Balance Shifts: Twentieth Century Developments in War Powers

W, Jan. 24; M, Jan. 29; W, Jan. 31


- How has the United States evolved into an Executive centered division of labor?

- What have been some of the pivotal moments in post-war America that has heightened the Executives control over the war powers (e.g., Cold War, Vietnam)?

- What have been some of the attempts, both legislative and judicial, to trim back what some have described as the “Imperial Presidency”? How effective have these attempts been?


- Charles Lofgren. “United States v. Curtiss-Wright Export Corp: An Historical Reassessment” 82 Yale Law Journal (Nov. 1973) [JSTOR]

- Michael Stokes Paulsen. “Youngstown Goes to War.” 19 Constitutional Commentary (Spring 2002)
- John Hart Ely. “The American War in Indochina, Part I: The (Troubled) Constitutionality of the War They Told Us About.” 42 Stanford Law Review (April 1990) pp. 876-908. [JSTOR]
- John Hart Ely. “The American War in Indochina, Part II: The Unconstitutionality of the War They Didn’t Tell Us About.” 42 Stanford Law Review (May 1990) [JSTOR]

Cases and Documents:

- United States v. Curtiss-Wright Export Corp. 299 U.S. 304 (1936)

- Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579 (1952)

- War Powers Act (November 7, 1973)

Civil Rights and Liberties during Wartime

M, Feb. 5; W, Feb. 7


- Do civil liberties shrink during times of war? Might they actually expand?

- What are the criteria by which judges have balanced the interests in personal liberty with the goal of collective security? How much of a role have courts played during wartime?

- During war, are all American’s liberties equally threatened? Whose liberties are most at risk, and in what ways?


- William Brennan Jr. “The Quest to Develop a Jurisprudence of Civil Liberties in Times of Security Crises” 18 Israel Yearbook on Human Rights, 11 (1998)

- Mark Tushnet. “Defending Korematsu? Reflections on Civil Liberties in Wartime” in The Constitution in Wartime, pp. 124-140.
- Mark A. Graber. Counter-Stories: Maintaining and Expanding Civil Liberties in Wartime” in The Constitution in Wartime, pp. 95-123.
Cases and Documents:

- Abrams v United States 250 U.S. 616 (1919)

- Korematsu v United States 323 U.S. 214 (1944)

First Take Home Essay: Due 2:30PM, Monday February 12

Martial Law and Military Tribunals

M. Feb. 12; W, Feb.14


- What is martial law, and what have been its historical uses in American history? What is a military tribunal, and how does it differ from either domestic criminal courts or a court martial?

- What are the necessities and the benefits of military tribunals during times of war? How have military tribunals been deployed since 9/11?

- Louis Fisher. “Military Tribunals: A Sorry History” Presidential Studies Quarterly 33:3 (September 2003)
- Ruth Wedgwood. “Al Qaeda, Terrorism, and Military Commissions,” American Journal of International Law 96:2 (April, 2002) pp. 328-337. [JSTOR]
Cases and Documents:

- Ex Parte Milligan 71 U.S. 2 (1866)

- Ex Parte Quirin 317 U.S. 63 (1942)

- Duncan v Kahanamoku 327 U.S. 304 (1946)

- Military Commissions Act (2006)

International Laws of War: Challenges to State Sovereignty?

M, Feb. 19; W, Feb. 21


- What is international law, and what is its legal status? What are the positions of international law, and international organizations, with respects to the sovereignty of the United States?

- What are the Geneva Conventions, and other relevant international treaties signed by the United States? In what ways do these treatises limit the scope of legal actions taken by the United States?

- Michael Byers. War Law: Understanding International Law and Armed Conflict. (Grove Press, 2006)

- Robert O. Keohane, “The Concept of Legalization” International Organization 54:3 (Summer 2000) [JSTOR]

In the Face of Law, Do War Criminals Fall Silent?

M, Feb. 26; W. Feb. 28


- What are war crimes, and war crime trials? What has been the recent history of war crime trials?

- What are some the similarity and differences between a war crimes trial and a domestic criminal trial? Are war crime trials effective remedies or punishment?

- Are war crime trials properly legal? Is the legitimacy of war crime trials based in ethics, or politics? Are they a form of victors’ justice?


- Patricia M. Wald. “Punishment of War Crimes by International Tribunals” Social Research 69:4 (Winter 2002)
- Michael Walzer. “The Triumph of Just War Theory (and the Dangers of Success)” Social Research 69:4 (Winter 2002)
- Stephen Holmes. “Why International Justice Limps” Social Research 69:4 (Winter 2002)
- Gerry J. Simpson. “War Crimes: A Critical Introduction” in The Law of War Crimes: National and International Approaches (Kluwer Law International, 1997), pp. 1-30.

Spring Break

Theories of Constitutional Dictatorship

M, March 12; W, March14; M, March 19; W, March 21


- What is a “constitutional dictator”? Can a constitutional system plan for emergencies that require extra legal action?

- What are the historical antecedents for a constitutional dictatorship?

- What has been the American history of the debate over constitutional dictatorships, as it arose during two specific times in American history: during the fear over Fascism and Communism during the 1940s/1950s, and post 9/11.


- Livy. History of Rome 3.26-3.30
- Machiavelli. Discourses on Livy. Book I. chapter 33-34.
- John Locke. Chapter 14: “Of Prerogative.” Second Treatise of Government
- Federalist Papers #23, 28
- Clinton L. Rossiter. “Constitutional Dictatorship in the Atomic Age.” The Review of Politics 11:4 (Oct. 1949) pp. 395-418. [JSTOR]
- David Dyzenhaus. “The State of Emergency in Legal Theory.” Global Anti-Terrorism Law and Policy (Cambridge University Press, 2005) pp. 65-89.
- Oren Gross. “Stability and Flexibility: A Dicey Business.” Global Anti-Terrorism Law and Policy (Cambridge University Press, 2005) pp. 90-106.

- Giorgio Agamben. “A Brief History of the State of Exception” State of Exception (University of Chicago Press, 2005), pp. 11-22

- William E. Scheuerman. “Emergency Powers and the Rule of Law after 9/11.” The Journal of Political Philosophy 14:1 (2006), pp. 61-84.

Second Take Home Essay: Due 2:30PM, Monday March 26

Was Lincoln a Constitutional Dictator?

M, March 26; W, March 28


- What are the executive actions that led to the charge that Lincoln was a constitutional dictator?

- What has been the historical evolution of the theory that the Union was preserved through the exercise of extra-constitutional authority?

- What are some of the different ways in which Lincoln actions, and the Civil War itself, have established exemplars and precedents for the exercise of presidential war powers?


- Herman Belz. “Lincoln and the Constitution: The Dictatorship Question Reconsidered” in Abraham Lincoln, Constitutionalism, and Equal Rights in the Civil War Era (Fordham University Press, 1998)

- Benjamin A. Kleinerman. “Lincoln’s Example: Executive Power and the Survival of Constitutionalism” Perspectives on Politics 3:4 (December 2005), 801-816.
- Sherrill Halbert. “Suspension of the Write of Habeas Corpus by President Lincoln” American Journal of Legal History 2:2 (April 1958) pp. 95-116. [JSTOR]
- William Whiting. War Powers Under the Constitution of the United States (1871 rev. ed.) (New York: De Capo Press, 1972) pp. 1-14.
Cases and Documents:

- Ex Parte Merryman 17 F. Cas. 144 (1861)

- The Prize Cases 67 U.S. 635 (1862)

- Abraham Lincoln. “Message to Congress” (July 4, 1861)

The Unitary Executive – Separated Powers in the War on Terrorism

M, April 2; W, April 4; M, April 9


- What is the concept of the “unitary executive”? What are the legal, political and historical arguments used to defend this concept?

- How has the concept been used, both before and after 9/11?

- What have been the responses of Congress? We shall explore issues involving military tribunals, torture, signing statements, and the applicability of Geneva Conventions


- John Yoo. War by Other Means: An Insiders Account of the War on Terror (2006)

- Jane Mayer. “The Hidden Power: The Legal Mind Behind the White House’s War on Terror” The New Yorker (July 3, 2006)
- Emily Bazelon, Phillip Carter, and Dahlia Lithwick. “What is Torture?: an Interactive Primer on American Interrogation” Slate May 26, 2005.
Cases and Documents:

- Authorization for Use of Military Force (September 18, 2001)
- Memorandum for Alberto R. Gonzales, Counsel to the President, Re: Standards of Conduct for Interrogation [aka, the “Torture Memo”] (August 1, 2002)
- Authorization for Use of Military Force Against Iraq (October 16, 2002)
- Department of Justice. “Legal Authorities Supporting the Activities of the National Security Agency Described by the President” (January 19, 2006)

Judicial Reactions to the War on Terror

W, April11; M, April 16; W, April18; M, April 23


- How has the Supreme Court responded in the three major legal decisions to come out of the challenges to the prison camp at Guantanamo Bay?

- What is the appropriate role of the judiciary during the war on terrorism?

- Joseph Margulies. Guantanamo and the Abuse of Presidential Power (Simon and Schuster, 2006)

- Mark Tushnet. “Afterward: The Supreme Court’s 2004 Decisions” in The Constitution in Wartime, pp. 249-254.
Cases and Documents:

- Rasul v. Bush 542 U.S. 466 (2004)

- Hamdi v Rumsfeld 542 U.S. 507 (2004)

- Hamdan v Rumsfeld 548 U.S. _____ (2006)

Third Take Home Essay: Due 2:30PM, Friday April 27

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