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Authorities for Military Operations Against Terrorist Groups
The State of the Debate and Options for Congress
Christopher S. Chivvis
RAND Corporation, 2016
U.S. counterterrorism operations rely on authorizations established in 2001 and 2002. This report surveys the debate over the requirements for a new congressional authorization for the use of military force against terrorist groups and examines the current terrorist challenge, the purposes and key elements of such legislation, and options for Congress.
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The Body of John Merryman
Abraham Lincoln and the Suspension of Habeas Corpus
Brian McGinty
Harvard University Press, 2011

In April 1861, President Abraham Lincoln suspended the writ of habeas corpus along the military line between Washington, D.C., and Philadelphia. This allowed army officers to arrest and indefinitely detain persons who were interfering with military operations in the area. When John Merryman, a wealthy Marylander suspected of burning bridges to prevent the passage of U.S. troops to Washington, was detained in Fort McHenry, the chief justice of the Supreme Court, Roger Taney, declared the suspension of habeas corpus unconstitutional and demanded Merryman's immediate release. Lincoln defied Taney’s order, offering his own forceful counter-argument for the constitutionality of his actions. Thus the stage was set for one of the most dramatic personal and legal confrontations the country has ever witnessed.

The Body of John Merryman is the first book-length examination of this much-misunderstood chapter in American history. Brian McGinty captures the tension and uncertainty that surrounded the early months of the Civil War, explaining how Lincoln's suspension of habeas corpus was first and foremost a military action that only subsequently became a crucial constitutional battle. McGinty's narrative brings to life the personalities that drove this uneasy standoff and expands our understanding of the war as a legal—and not just a military, political, and social—conflict. The Body of John Merryman is an extraordinarily readable book that illuminates the contours of one of the most significant cases in American legal history—a case that continues to resonate in our own time.

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The Constitution in Wartime
Beyond Alarmism and Complacency
Mark Tushnet, ed.
Duke University Press, 2005
Most recent discussion of the United States Constitution and war—both the war on terrorism and the war in Iraq—has been dominated by two diametrically opposed views: the alarmism of those who see many current policies as portending gross restrictions on American civil liberties, and the complacency of those who see these same policies as entirely reasonable accommodations to the new realities of national security. Whatever their contributions to the public discussion and policy-making processes, these voices contribute little to an understanding of the real constitutional issues raised by war. Providing the historical and legal context needed to assess competing claims, The Constitution in Wartime identifies and explains the complexities of the important constitutional issues brought to the fore by wartime actions and policies. Twelve prominent legal scholars and political scientists combine broad overviews of U.S. history and contemporary policy with detailed yet accessible analyses of legal issues of pressing concern today.

Some of the essays are broad in scope, reflecting on national character, patriotism, and political theory; exploring whether war and republican government are compatible; and considering in what sense we can be said to be in wartime circumstances today. Others are more specific, examining the roles of Congress, the presidency, the courts, and the international legal community. Throughout the collection, balanced, unbiased analysis leads to some surprising conclusions, one of which is that wartime conditions have sometimes increased, rather than curtailed, civil rights and civil liberties. For instance, during the cold war, government officials regarded measures aimed at expanding African Americans’ freedom at home as crucial to improving America’s image abroad.

Contributors. Sotirios Barber, Mark Brandon, James E. Fleming, Mark Graber, Samuel Issacharoff, David Luban, Richard H. Pildes, Eric Posner, Peter Spiro, William Michael Treanor, Mark Tushnet, Adrian Vermeule

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Emergency Presidential Power
From the Drafting of the Constitution to the War on Terror
Chris Edelson; Foreword by Louis Fisher
University of Wisconsin Press, 2013
Can a U.S. president decide to hold suspected terrorists indefinitely without charges or secretly monitor telephone conversations and e-mails without a warrant in the interest of national security? Was the George W. Bush administration justified in authorizing waterboarding? Was President Obama justified in ordering the killing, without trial or hearing, of a U.S. citizen suspected of terrorist activity? Defining the scope and limits of emergency presidential power might seem easy—just turn to Article II of the Constitution. But as Chris Edelson shows, the reality is complicated. In times of crisis, presidents have frequently staked out claims to broad national security power. Ultimately it is up to the Congress, the courts, and the people to decide whether presidents are acting appropriately or have gone too far.
            Drawing on excerpts from the U.S. Constitution, Supreme Court opinions, Department of Justice memos, and other primary documents, Edelson weighs the various arguments that presidents have used to justify the expansive use of executive power in times of crisis. Emergency Presidential Power uses the historical record to evaluate and analyze presidential actions before and after the terrorist attacks of September 11, 2001. The choices of the twenty-first century, Edelson concludes, have pushed the boundaries of emergency presidential power in ways that may provide dangerous precedents for current and future commanders-in-chief.

Winner, Crader Family Book Prize in American Values, Department of History and Crader Family Endowment for American Values, Southeast Missouri State University

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From Chinese Exclusion to Guantánamo Bay
Plenary Power and the Prerogative State
Natsu Taylor Saito
University Press of Colorado, 2007
Continuous expansion of executive power is igniting national debate: Is the administration authorized to detain people without charges or access to counsel, due process, or a fair trial? Is torture acceptable as long as it doesn't happen on U.S. soil? In a new study of the use of plenary power - the doctrine under which U.S. courts have allowed the exercise of U.S. jurisdiction without concomitant constitutional protection - Natsu Taylor Saito puts contemporary policies in historical perspective, illustrating how such extensions of power have been upheld by courts from the 1880s to the present.

From Chinese Exclusion to Guantánamo Bay also provides a larger context for understanding problems resulting from the exercise of plenary power. Saito explains how the rights of individuals and groups deemed Other by virtue of race or national origin have been violated under both the Constitution and international law. The differing treatment of José Padilla and John Walker Lindh - both Americans accused of terrorism - provides an example of such disparate approaches. Such executive actions and their sanction by Congress and the judiciary, Saito argues, undermine not just individual rights but the very foundations of our national security - democracy and the rule of law.

From Chinese Exclusion to Guantánamo Bay will interest readers concerned with the historical background of constitutional protection in times of war and peace and will provide fascinating new material for scholars, teachers, and students of law, history, and ethnic studies

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In the Name of War
Judicial Review and the War Powers since 1918
Christopher N. May
Harvard University Press, 1989

For more than a century, in settings where the political branches of government were unable or unwilling to exercise self-restraint, the Supreme Court was disposed to treat federal war powers legislation as exempt from judicial review, an attitude that permitted numerous abuses from Prohibition to press censorship.

Though the First World War officially ended in 1918, the Senate’s rejection of the Versailles Treaty kept the United States in a legal state of war until late 1921. Exploring the interplay between political and social events and the evolution of legal theory Christopher May tells how during this challenging three-year period, the government invoked the war powers to pursue ends otherwise beyond its reach: with the backing of Congress and seemingly free from judicial scrutiny, the Wilson administration took over the country’s rail and communications systems, outlawed profiteering, prosecuted strikers, suppressed “radicals” and censored the leftist press. None of these measures bore any true relation to the war, says the author, who then describes the course through which the Supreme Court, confronted by this pattern of abuse, finally abandoned its long-standing refusal to review the constitutionality of war powers legislation.

In the Name of War explores the roles played by Woodrow Wilson, Joseph Tumulty, Albert Burleson, and A. Mitchell Palmer—men whose personal ambitions frequently shaped official policy in the late Progressive Era. After analyzing the Court’s more recent record, including the internment of Japanese-Americans in World War II, May draws some practical conclusions about the use of judicial intervention in time of crisis that are sure to attract the attention of lawyers, legal scholars, historians, and students of the Constitution.

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Individual Freedoms and State Security in the African Context
The Case of Zimbabwe
John Hatchard
Ohio University Press, 1993

In 1980 the ZANU/PF government of Robert Mugabe came to power after an extended war of liberation. They inherited a cluster of emergency laws similar to those available to the authorities in South Africa. It was also the beginning of the cynical South African state policy of destabilization of the frontline states. This led to a dangerous period of insurrection in Mashonaland and increased activity by Renamo.

Dr. Hatchard uses the case of Zimbabwe to ask questions about the use of authority in contemporary African states. He examines:
1. Whether and in what circumstances the declaration and retention of a state of emergency is justified;
2.The scope of emergency regulations and their impact on individual freedoms;
3.What safeguards are necessary in order to protect those freedoms during a state of emergency.

The relationship is studied from a political as well as a legal perspective. Dr. Hatchard examines the role law has played, is playing and may play. The author concludes that, even if the state of emergency is justified, this does not necessitate the curtailment of the exercise of individual freedoms.

There are many comparisons with the rest of Africa. The book is of practical importance for members of the judiciary, legal practitioners, politicians and human rights organizations. The difficult questions it poses make stimulating teaching material for students of the Third World who want to understand the reality of the exercise of power in fragile situations.

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Justice in Blue and Gray
A Legal History of the Civil War
Stephen C. Neff
Harvard University Press, 2010

Stephen C. Neff offers the first comprehensive study of the wide range of legal issues arising from the American Civil War, many of which resonate in debates to this day.

Neff examines the lawfulness of secession, executive and legislative governmental powers, and laws governing the conduct of war. Whether the United States acted as a sovereign or a belligerent had legal consequences, including treating Confederates as rebellious citizens or foreign nationals in war. Property questions played a key role, especially when it came to the process of emancipation. Executive detentions and trials by military commissions tested civil liberties, and the end of the war produced a raft of issues on the status of the Southern states, the legality of Confederate acts, clemency, and compensation. A compelling aspect of the book is the inclusion of international law, as Neff situates the conflict within the general laws of war and details neutrality issues, where the Civil War broke important new legal ground.

This book not only provides an accessible and informative legal portrait of this critical period but also illuminates how legal issues arise in a time of crisis, what impact they have, and how courts attempt to resolve them.

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Long Wars and the Constitution
Stephen M. Griffin
Harvard University Press, 2013

In a wide-ranging constitutional history of presidential war decisions from 1945 to the present, Stephen M. Griffin rethinks the long-running debate over the “imperial presidency” and concludes that the eighteenth-century Constitution is inadequate to the challenges of a post-9/11 world.

The Constitution requires the consent of Congress before the United States can go to war. Truman’s decision to fight in Korea without gaining that consent was unconstitutional, says Griffin, but the acquiescence of Congress and the American people created a precedent for presidents to claim autonomy in this arena ever since. The unthinking extension of presidential leadership in foreign affairs to a point where presidents unilaterally decide when to go to war, Griffin argues, has destabilized our constitutional order and deranged our foreign policy. Long Wars and the Constitution demonstrates the unexpected connections between presidential war power and the constitutional crises that have plagued American politics.

Contemporary presidents are caught in a dilemma. On the one hand are the responsibilities handed over to them by a dangerous world, and on the other is an incapacity for sound decisionmaking in the absence of interbranch deliberation. President Obama’s continuation of many Bush administration policies in the long war against terrorism is only the latest in a chain of difficulties resulting from the imbalances introduced by the post-1945 constitutional order. Griffin argues for beginning a cycle of accountability in which Congress would play a meaningful role in decisions for war, while recognizing the realities of twenty-first century diplomacy.

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The Lost Art of Declaring War
Brien Hallett
University of Illinois Press, 1998

Historically, it has been assumed that war is violence and declarations of war are simply public announcements that serve to initiate combat. Brien Hallett denies both assumptions and claims that war is policy, not violence.

The Lost Art of Declaring War analyzes the crucial differences between combat and war and convincingly argues that the power to "declare" war is in actuality the power to compose a text, draft a document, write a denunciation. Once written, the declaration then serves three functions: to articulate the political purposes of the war, to guide and direct military operations, and to establish the boundary between justified combat and unjustified devastation.

Hallett sounds a clarion call urging the people and their representatives to take up the challenge and write fully reasoned declarations of war. Then, and only then, can a civilized nation like the United States lay claim to being fully democratic, not only in peacetime, but in wartime as well.

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The Powers of War and Peace
The Constitution and Foreign Affairs after 9/11
John Yoo
University of Chicago Press, 2005
Since the September 11 attacks on the United States, the Bush administration has come under fire for its methods of combating terrorism. Waging war against al Qaeda has proven to be a legal quagmire, with critics claiming that the administration's response in Afghanistan and Iraq is unconstitutional. The war on terror—and, in a larger sense, the administration's decision to withdraw from the ABM Treaty and the Kyoto accords—has many wondering whether the constitutional framework for making foreign affairs decisions has been discarded by the present administration.

John Yoo, formerly a lawyer in the Department of Justice, here makes the case for a completely new approach to understanding what the Constitution says about foreign affairs, particularly the powers of war and peace. Looking to American history, Yoo points out that from Truman and Korea to Clinton's intervention in Kosovo, American presidents have had to act decisively on the world stage without a declaration of war. They are able to do so, Yoo argues, because the Constitution grants the president, Congress, and the courts very different powers, requiring them to negotiate the country's foreign policy. Yoo roots his controversial analysis in a brilliant reconstruction of the original understanding of the foreign affairs power and supplements it with arguments based on constitutional text, structure, and history.

Accessibly blending historical arguments with current policy debates, The Powers of War and Peace will no doubt be hotly debated. And while the questions it addresses are as old and fundamental as the Constitution itself, America's response to the September 11 attacks has renewed them with even greater force and urgency.

“Can the president of the United States do whatever he likes in wartime without oversight from Congress or the courts? This year, the issue came to a head as the Bush administration struggled to maintain its aggressive approach to the detention and interrogation of suspected enemy combatants in the war on terrorism. But this was also the year that the administration’s claims about presidential supremacy received their most sustained intellectual defense [in] The Powers of War and Peace.”—Jeffrey Rosen, New York Times

“Yoo’s theory promotes frank discussion of the national interest and makes it harder for politicians to parade policy conflicts as constitutional crises. Most important, Yoo’s approach offers a way to renew our political system’s democratic vigor.”—David B. Rivkin Jr. and Carlos Ramos-Mrosovsky, National Review

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Presidential Accountability in Wartime
President Bush, the Treatment of Detainees, and the Laws of War
Stuart Streichler
University of Michigan Press, 2023
The American presidency has long tested the capacity of the system of checks and balances to constrain executive power, especially in times of war. While scholars have examined presidents starting military conflicts without congressional authorization or infringing on civil liberties in the name of national security, Stuart Streichler focuses on the conduct of hostilities. Using the treatment of war-on-terror detainees under President George W. Bush as a case study, he integrates international humanitarian law into a constitutional analysis of the repercussions of presidential war powers for human rights around the world.

Putting President Bush’s actions in a wider context, Presidential Accountability in Wartime begins with a historical survey of the laws of war, with particular emphasis on the 1949 Geneva Conventions and the Nuremberg Tribunal. Streichler then reconstructs the decision-making process that led to the president’s approval of interrogation methods that violated Geneva’s mandate to treat wartime captives humanely. While taking note of various accountability options—from within the executive branch to the International Criminal Court—the book illustrates the challenge in holding presidents personally responsible for violating the laws of war through an in-depth analysis of the actions taken by Congress, the Supreme Court, and the public in response. In doing so, this book not only raises questions about whether international humanitarian law can moderate wartime presidential behavior but also about the character of the presidency and the American constitutional system of government.
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Security V. Liberty
Conflicts Between National Security and Civil Liberties in American History
Daniel Farber
Russell Sage Foundation, 2008
In the weeks following 9/11, the Bush administration launched the Patriot Act, rejected key provisions of the Geneva Convention, and inaugurated a sweeping electronic surveillance program for intelligence purposes—all in the name of protecting national security. But the current administration is hardly unique in pursuing such measures. In Security v. Liberty, Daniel Farber leads a group of prominent historians and legal experts in exploring the varied ways in which threats to national security have affected civil liberties throughout American history. Has the government's response to such threats led to a gradual loss of freedoms once taken for granted, or has the nation learned how to restore civil liberties after threats subside and how to put protections in place for the future? Security v. Liberty focuses on periods of national emergency in the twentieth century—from World War I through the Vietnam War—to explore how past episodes might bear upon today's dilemma. Distinguished historian Alan Brinkley shows that during World War I the government targeted vulnerable groups—including socialists, anarchists, and labor leaders—not because of a real threat to the nation, but because it was politically expedient to scapegoat unpopular groups. Nonetheless, within ten years the Supreme Court had rolled back the most egregious of the World War I restrictions on civil liberties. Legal scholar John Yoo argues for the legitimacy of the Bush administration's War on Terror policies—such as the detainment and trials of suspected al Qaeda members—by citing historical precedent in the Roosevelt administration's prosecution of World War II. Yoo contends that, compared to Roosevelt's sweeping use of executive orders, Bush has exercised relative restraint in curtailing civil liberties. Law professor Geoffrey Stone describes how J. Edgar Hoover used domestic surveillance to harass anti-war protestors and civil rights groups throughout the 1960s and early 1970s. Congress later enacted legislation to prevent a recurrence of the Hoover era excesses, but Stone notes that the Bush administration has argued for the right to circumvent some of these restrictions in its campaign against terrorism. Historian Jan Ellen Lewis looks at early U.S. history to show how an individual's civil liberties often depended on the extent to which he or she fit the definition of "American" as the country's borders expanded. Legal experts Paul Schwartz and Ronald Lee examine the national security implications of rapid advances in information technology, which is increasingly driven by a highly globalized private sector, rather than by the U.S. government. Security v. Liberty shows that civil liberties are a not an immutable right, but the historically shifting result of a continuous struggle that has extended over two centuries. This important new volume provides a penetrating historical and legal analysis of the trade-offs between security and liberty that have shaped our national history—trade-offs that we confront with renewed urgency in a post-9/11 world.
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State of Exception
Giorgio Agamben
University of Chicago Press, 2004
Two months after the attacks of 9/11, the Bush administration, in the midst of what it perceived to be a state of emergency, authorized the indefinite detention of noncitizens suspected of terrorist activities and their subsequent trials by a military commission. Here, distinguished Italian philosopher Giorgio Agamben uses such circumstances to argue that this unusual extension of power, or "state of exception," has historically been an underexamined and powerful strategy that has the potential to transform democracies into totalitarian states.

The sequel to Agamben's Homo Sacer: Sovereign Power and Bare Life, State of Exception is the first book to theorize the state of exception in historical and philosophical context. In Agamben's view, the majority of legal scholars and policymakers in Europe as well as the United States have wrongly rejected the necessity of such a theory, claiming instead that the state of exception is a pragmatic question. Agamben argues here that the state of exception, which was meant to be a provisional measure, became in the course of the twentieth century a normal paradigm of government. Writing nothing less than the history of the state of exception in its various national contexts throughout Western Europe and the United States, Agamben uses the work of Carl Schmitt as a foil for his reflections as well as that of Derrida, Benjamin, and Arendt.

In this highly topical book, Agamben ultimately arrives at original ideas about the future of democracy and casts a new light on the hidden relationship that ties law to violence.
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States of Exception in American History
Edited by Gary Gerstle and Joel Isaac
University of Chicago Press, 2020
States of Exception in American History brings to light the remarkable number of instances since the Founding in which the protections of the Constitution have been overridden, held in abeyance, or deliberately weakened for certain members of the polity. In the United States, derogations from the rule of law seem to have been a feature of—not a bug in—the constitutional system.

The first comprehensive account of the politics of exceptions and emergencies in the history of the United States, this book weaves together historical studies of moments and spaces of exception with conceptual analyses of emergency, the state of exception, sovereignty, and dictatorship. The Civil War, the Great Depression, and the Cold War figure prominently in the essays; so do Francis Lieber, Frederick Douglass, John Dewey, Clinton Rossiter, and others who explored whether it was possible for the United States to survive states of emergency without losing its democratic way. States of Exception combines political theory and the history of political thought with histories of race and political institutions. It is both inspired by and illuminating of the American experience with constitutional rule in the age of terror and Trump.
 
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Truman and the Steel Seizure Case
The Limits of Presidential Power
Maeva Marcus
Duke University Press, 1994
Government seizure of the nation’s strikebound steel mills on 8 April 1952 stands as one of President Harry S Truman’s most controversial actions, representing an unprecedented use of presidential power. On 8 June 1952 the United States Supreme Court invalidated Truman’s order with its monumental decision in Youngstown Sheet and Tube Co. v. Sawyer. The history and significance of this case constitute the subject of Maeva Marcus’s meticulously researched, brilliantly analyzed, and authoritative study. From Truman’s initial assertion of "inherent" executive power under the Constitution to the High Court’s seven opinions, Marcus assesses the influence of the case on the doctrine of separation of powers and, specifically, the nature and practice of executive authority. First published in 1977 (Columbia University Press), and reissued here in paperback with a new foreword by Louis Fisher, this book remains the definitive account of the Steel Seizure incident and its political and legal ramifications.
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The Wartime President
Executive Influence and the Nationalizing Politics of Threat
William G. Howell, Saul P. Jackman, and Jon C. Rogowski
University of Chicago Press, 2013
“It is the nature of war to increase the executive at the expense of the legislative authority,” wrote Alexander Hamilton in the Federalist Papers. The balance of power between Congress and the president has been a powerful thread throughout American political thought since the time of the Founding Fathers. And yet, for all that has been written on the topic, we still lack a solid empirical or theoretical justification for Hamilton’s proposition.
           
For the first time, William G. Howell, Saul P. Jackman, and Jon C. Rogowski systematically analyze the question. Congress, they show, is more likely to defer to the president’s policy preferences when political debates center on national rather than local considerations. Thus, World War II and the post-9/11 wars in Afghanistan and Iraq significantly augmented presidential power, allowing the president to enact foreign and domestic policies that would have been unattainable in times of peace. But, contrary to popular belief, there are also times when war has little effect on a president’s influence in Congress. The Vietnam and Gulf Wars, for instance, did not nationalize our politics nearly so much, and presidential influence expanded only moderately.
           
Built on groundbreaking research, The Wartime President offers one of the most significant works ever written on the wartime powers presidents wield at home.

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