Digital Commons Network^™

Legal Obligations: The Proper Role Of White House Lawyers, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

An opinion issued on Aug. 1, 2002, by Assistant Attorney General Jay S. Bybee of the Department of Justice’s Office of Legal Counsel held that the federal statute that makes it a crime to commit torture outside the United States should not be read to “apply to the President’s detention and interrogation of enemy combatants pursuant to his Commander-in-Chief authority.” The opinion further concluded that if the statute did criminalize interrogations ordered by the president, it was unconstitutional.

The memorandum, which has become known as the “torture memo,” figures prominently in the ongoing public debate about whether there should be …

The Perilous Dialogue, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The master metaphor in the national security dialogue is, indeed, “security or freedom”. It dominates the counterterrorist discourse both in the United States and abroad. Transcripts from debates in Ireland’s Dáil Éireann, Turkey’s Büyük Millet Meclisi, and Australia’s Parliament are filled with reference to the need to weigh the value of liberty against the threat posed by terrorism. Perhaps nowhere is this more pronounced than in the United Kingdom, where, for decades, counterterrorist debates have turned on this framing. Owing in part, though, to different constitutional structures, what “security or freedom” means in America differs from what it means in …

On The Commander-In-Chief Power, David Luban

Georgetown Law Faculty Publications and Other Works

Since September 11, the Bush administration has asserted broad, exclusive presidential war powers under the Commander in Chief Clause. However, the minimalist language of the Clause never specifies what powers a commander in chief possesses. This paper argues, based on military history, original understanding, and the contemporary theory of civilian-military relations, that the commander-in-chief power is narrow rather than broad. In ancient and feudal societies, like contemporary military dictatorships, civilian and military dominion are fused to consolidate power in the hands of a single leader – a warrior-king or fighting executive, whose military prowess validates the claim to civilian rule. …

Tinkering With Torture In The Aftermath Of Hamdan: Testing The Relationship Between Internationalism And Constitutionalism, Catherine Powell

Georgetown Law Faculty Publications and Other Works

Bridging international and constitutional law scholarship, the author examines the question of torture in light of democratic values. The focus in this article is on the international prohibition on torture as this norm was addressed through the political process in the aftermath of Hamdan v. Rumsfeld. Responding to charges that the international torture prohibition--and international law generally--poses irreconcilable challenges for democracy and our constitutional framework, the author contends that by promoting respect for fundamental rights and for minorities and outsiders, international law actually facilitates a broad conception of democracy and constitutionalism. She takes on the question of torture within …

No Reason To Believe: Radical Skepticism, Emergency Power, And Constitutional Constraint, David Cole

Georgetown Law Faculty Publications and Other Works

This essay reviews Eric Posner and Adrian Vermeule’s Terror in the Balance: Security, Liberty, and the Courts, which I consider the most serious, sustained, and thoughtful effort to defend the Bush administration’s aggressive tactics in the war on terror yet written. That the book is ultimately deeply flawed only underscores the failure of the Bush administration’s approach.

Where most historians view with regret the excesses of past security crises, from the criminalization of speech during World War I to the internment of Japanese Americans during World War II, Posner and Vermeule advance the contrarian view that the system worked exactly …

The Man Behind The Torture, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

The Defense Of Torture, David Luban

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Why The Court Said No, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

We The People's Executive, Rosa Ehrenreich Brooks

Georgetown Law Faculty Publications and Other Works

Perhaps to no one’s surprise, a recent survey found that most Americans know far more about television hits than they know about the United States Constitution. For instance, 52% of Americans surveyed could name at least two characters from The Simpsons, and 41% could name at least two judges from American Idol. Meanwhile, a mere 28% could identify more than one of the rights protected by the First Amendment.

Surveys such as this help clear up one of the apparent mysteries of the last five years: How did we change so quickly from a nation in which the …

Unitariness And Myopia: The Executive Branch, Legal Process And Torture, Cornelia T. Pillard

Georgetown Law Faculty Publications and Other Works

What promotes legality on the part of government under strain? This Article looks to the role of intra-executive processes in facilitating well-reasoned, legitimate conclusions on questions like the one addressed in this symposium: What are the legal authorities and limits governing coercive interrogation tactics? Admittedly, even the best legal processes are no guarantee of good substantive outcomes. Many critics would disagree with the substance of the executive's August 1, 2002, legal position on coercive interrogation no matter how it was derived. And even were all the best processes faithfully adhered to in developing the government's legal position on torture, it …

What Bush Wants To Hear, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

The Unfulfilled Promise Of The Constitution In Executive Hands, Cornelia T. Pillard

Georgetown Law Faculty Publications and Other Works

Many leading constitutional scholars now argue for greater reliance on the political branches to supplement or even supplant judicial enforcement of the Constitution. Responding to our national preoccupation with the judiciary as the mechanism of constitutional enforcement, these scholars stress that the executive and legislature, too, bear responsibility to think about the Constitution for themselves and to take steps to fulfill the Constitution's promise. Joining a debate that goes back at least as far as Marbury v. Madison, current scholars seek to reawaken the political branches to their constitutional potential, and urge the Supreme Court to leave the other branches …