Law Commons^™

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 …

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. …

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 …