The U.S. Legal History Survey Revisited: II - Teaching the War on Terror

This is a continuation of a series of posts on my first time teaching the U.S. Legal History survey (the first post is here). (Guest blogger Anders Walker's 2012 posts on this topic are collected here.)

For the final class of the semester, I allowed my students to choose a topic from among several options. They selected "Law and the 'War on Terror.'" (The other options were "Affirmative Action in Education and Employment," "The Legal Profession at the Dawn of the 21st Century," and "Consumer Rights and Corporate Responses.")

My first task was to select readings. I knew immediately that I would assign the final chapter of Mary L. Dudziak's War Time: An Idea, Its History, Its Consequences ("What Is a War on Terror?"). I wanted to assign a few other readings as well, but time was short and I failed to get my act together. Here are some other sources I considered (with a hat tip to Mary Dudziak for many of these suggestions):

• Excerpts from Karen J. Greenberg & Joshua L. Dratel, The Torture Papers: The Road to Abu Ghraib (Cambridge University Press, 2005).

• Excerpts from Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (W.W. Norton & Co., 2007).

• Excerpts from the National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report (2004).

• Sources from the September 11 Digital Archive.

• Colonel Charles J. Dunlap, Jr. (USAF), "Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts," paper prepared for the Humanitarian Challenges in Military Intervention Conference, Carr Center for Human Rights Policy, Kennedy School of Government, Harvard University, Nov. 29, 2001.

• Jack M. Balkin, "The Constitution in the National Surveillance State," in Jack M. Balkin & Reva B. Siegel, eds., The Constitution in 2020 (Oxford University Press, 2009). 

• Selections from Austin Sarat & Nasser Hussain, eds., When Governments Break the Law: The Rule of Law and the Prosecution of the Bush Administration (New York University Press, 2010).  

• Excerpts from Jess Bravin, The Terror Courts: Rough Justice at Guantanamo Bay (Yale University Press, 2013).

• The Lawfare blog might offer some other leads, but I confess to not knowing much about it. (Mark Tushnet recently posted a cautionary note of sorts, here.)

As I thought about what to say in class, I read as many historical interpretations of the "War on Terror" as time allowed. Here are a some that I found particularly useful (in addition to War Time):

• Volume 89, No. 2 of the Journal of American History, a special issue on "History and September 11." 

• Rosemary Foot, "Exceptionalism Again: The Bush Administration, the ''Global War on Terror,' and Human Rights," Law & History Review, Vol. 26, no. 3 (2008).

• Mary L. Dudziak & Leti Volpp, eds., Legal Borderlands: Law and the Construction of American Borderlands (Johns Hopkins University Press, 2006).

• Melani McAlister, Epic Encounters: Culture, Media, and U.S. Interests in the Middle East since 1945 (University of California Press, revised ed., 2005).

I also found myself looking for ways to make sense of the Supreme Court decisions. Here are some articles that I found useful:

• Jennifer S. Martinez, "Process and Substance in the 'War on Terror,'" Columbia Law Review Vol. 108, no. 5 (2008).

• Stephen I. Vladeck's recent work. A full list is available here.

Some questions for readers:

• What other readings might work for a session on "Law and the War on Terror"?

• As the semester goes on and the course get closer and closer to "current events," what topics do you choose to cover?  

• I'm glad that I included this session on "Law and the War on Terror," but I did not feel confident about my interpretation of this very recent history, nor, in the wake of the Boston Marathon bombings, did I feel like this was history. How do you all approach topics with such strong contemporary resonances?