Civil War

Executive Branch Lawyering course, from left: Maria Eliot, Wade Herring, Professor Diane Marie Amann, Sarah Mirza, Hanna Karimipour, Jennifer Cotton, Taylor Samuels, Judge David J. Barron, Morgan Pollard, Keelin Cronin, Joe Stuhrenberg

Who decides how America wages war?

What does “commander in chief” mean?

What (national or international) laws govern the United States’ waging of war?

How and by whom are those law identified, interpreted, decided, and implemented?

Those questions and many more arose during the Executive Branch Lawyering course that I just had the honor of co-teaching with David J. Barron, Judge of the U.S. Court of Appeals for the 1st Circuit and also The Honorable S. William Green Visiting Professor of Public Law at Harvard Law School, where he had taught full-time before his 2014 appointment to the federal bench.

My own association with Barron – like me, a former law clerk to U.S. Supreme Court Justice John Paul Stevens – dates to 2008. That year, Barron and I were among the charter contributors to “Convictions,” a legal blog published for a time at Slate. And in 2017 Judge Barron began serving on the Judicial Advisory Board of the American Society of International Law, with which I am affiliated thanks to my editorship of ASIL’s Benchbook on International Law (2014).

For an 18-month period between those years, Barron served as Assistant Attorney General in charge of the Office of Legal Counsel, providing legal advice to then-President Barack Obama and to agencies in the Executive Branch. That experience formed the basis of the 1-credit course that he and I co-taught last week at my home institution, the University of Georgia School of Law.

Our texts included Barron’s 2016 book, Waging War: The Clash Between Presidents and Congress, 1776 to ISIS, as well as The Terror Presidency: Law and Judgment Inside the Bush Administration, a 2009 memoir by Harvard Law Professor Jack Goldsmith, who had led OLC from 2003 to 2004 – plus executive orders, congressional enactments, judicial decisions, and other primary materials.

To prepare for sessions with Judge Barron, a topnotch group of 9 Georgia Law students and I examined a selection of historical moments when Presidents’ war-waging generated tensions, with other branches of government established in the U.S. Constitution and with other stakeholders. Of particular concern were instances related to executive detention in time of war, for example: treatment of British officers held during the American Revolution; General Andrew Jackson’s jailing of a judge who issued a writ of habeas corpus during the 1814 military occupation of New Orleans; and 2 capital military trials, the 1st of an Indiana civilian in the Civil War and the 2d of Nazi saboteurs in World War II.

Sessions with Judge Barron concerned US executive detention and related issues since the terrorist attack of September 11, 2001. The focus was on OLC’s legal, ethical, and practical duties in advising on such policies – and, through careful and extensive role-playing, on how Executive Branch lawyers go about the day-to-day work of giving such advice.

A most valued, and rewarding, teaching experience.

 

map_ALAACROSS THE POND – An array of signage has marked my 1/2-finished 2-week journey in Europe.

The first is at left. It’s a favorite feature of transatlantic flying these days, the seatback map by which the white silhouette of a jet tells passengers where they are, where they’ve been, and where they’re headed. This one especially caught the eye because of the markings accompanied by years. No, that’s not Egypt relocated to France’s western coast, but rather an indication of where a ship named Egypt sank in 1922. Many such shipwrecks were noted along the way: of historical significance to be sure is Lusitania 1915 to the left. But for the international lawyer, perhaps greatest interest is Alabama 1864, in the channel between London and Bayeux. As a Confederate ship outfitted by the British, the Alabama plied European waters to harass Union ships. That behavior and its sinking gave rise to a landmark dispute settlement proceeding known as The Alabama Claims. In the words of the U.S. Department of State:
The peaceful resolution of these claims seven years after the war ended set an important precedent for solving serious international disputes through arbitration, and laid the foundation for greatly improved relations between Britain and the United States.

LNS_genevaONUThe early years of international law also surface in the emblem at right, located in what is now the Geneva, Switzerland, headquarters of the United Nations. The premises initially housed the 1st effort to construct a global intergovernmental organization aimed at promoting peace and security. Founded just after World War I, that organization did not survive the tragedy of World War II. Yet its legacy lives on not only in its successor organization, but also in architectural flourishes like this bilingual monogram: “LNS,” for “League of Nations / Société des Nations.”

The final set of signs, below, were found in a grand assembly room of the U.N. Geneva building. Organizers were preparing for a large gathering related to the World Health Organization – hence the caduceus affixed to the golden U.N. emblem above the dais. But the most interesting signs are those in the foreground. It had not occurred to me that the 2 entities recognized as U.N. nonmember states would be so situated at such meetings. Not the least because of the imminent journey of Pope Francis to the Middle East, the notion of delegates from entities as different as the Holy See and Palestine sitting side by side both comforts and fascinates.who_stsiege