Friday, May 3, 2013

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


Patrick S. O'Donnell said...

I think one of David Cole's books (a couple of them co-authored) on terrorism and the U.S. constitution would be a helpful addition. And perhaps something on attempts to define what terrorism in fact is: morally, legally, and politically. In any case, I'm sending along two of my bibliographies for you to browse through and/or make available to your students: one on terrorism, the other on torture.

Best wishes,

Stephen Griffin said...

Hi Karen, for a broad historical perspective on the war on terror keyed specifically to the Cold War, you should consider my forthcoming book "Long Wars and the Constitution," coming out May 13 (says Harvard UP and Amazon!).
Thanks, Steve Griffin

Anonymous said...

Jane Mayer's "The Dark Side" (or excerpts) could make interesting discussion fodder, perhaps paired with primary sources and/or the Goldsmith book.

Anonymous said...

Law and terror is a subject that Peter Dale Scott, former professor at Berkeley, has been writing about for decades. He just posted what I think is a draft piece that compares concepts of terror threats in the Cold War and the War on Terror. Most importantly, he discusses the product of those concepts: domestic legislation.

A recent and very critical analysis of law enforcement is "The Terror Factory: Inside the FBI's Manufactured War on Terrorism" by Trevor Aaronson. As a defense attorney, I've seen firsthand how law enforcement creates threats that do not exist. Aaronson takes us directly into domestic law enforcement, the cases that it creates, and the law that results.