Terrorism and the Rule of Law
CSS 425-01
Spring 2007
John E. Finn Office: PAC 413
jfinn@wesleyan.edu x 2493
Week 1 Week 2 Week 3 Week 4 Week 5 Week 6 Week 7
I. Introduction:
This seminar considers the issues posed by the war on terrorism for the rule of law in western democracies. We shall consider several topics, including the problem of defining terrorism (and the rule of law), the differences between military and criminal justice models of counter terrorism, the use and enforcement of anti terrorism legislation, and the effect of such legislation on civil liberties and other fundamental constitutional norms.
II. Grading:
Classes will consist primarily of discussion, so keeping up with the reading and participating is essential. One quarter of your grade will be based on general participation in the seminar. Another quarter of your grade will be based on the four weekly reading response papers. The final half will come from the grade on your final research paper.
III. Writing Assignments:
There are two kinds of writing assignments in this seminar. First, every student must submit a research paper on a topic approved by the instructor. Paper topics are due in the second week, a bibliography is due in week three, and a rough draft is due in week 5. Final drafts must be submitted on the last day of the seminar.
In addition, each student must prepare four weekly reading response papers. These papers should be approximately three to four pages in length and should concentrate on one or more of the readings assigned for the week.
IV. Readings:
The following required books will be at the book store:
Oren Gross & Fionnuala Ni Aolain, Law in Times of Crisis.
Richard M. Pious, Terrorism &
the Rule of Law.
John Yoo, The Powers of War & Peace.
Eric Posner, Terror in the Balance.
Joseph Margulies, Guantanomo & the Abuse of Presidential Power.
Peter Berkowitz, Terrorism, The Laws of War, & the Constitution.
Karen Greenberg, The Torture Debate in America.
Some additional readings may be required, available in the css library or through links to electronic reserve.
V. Course Outline:
Week 1: The Constitution, the Rule of Law, and Emergencies
Assigned: Gross, chapters 1-3
Posner, chapters 104
Recommended: Finn, Constitutions in Crisis, chapter 1
Rossiter, Constitutional Dictatorship
Schmitt, Political Theology
Federalist Papers, 1, 23,41,48,67, 69, 70
Week 2: Justice in Wartime: Historical Precedents
PAPER TOPIC DUE
Assigned: Pious, pp. xii-xv
Gross, chapter 2
Civil war:
Ex parte Merryman (1861)
Ex parte McCardle (1868)
Ex parte Milligan (1866)
The Prize Cases (1862)
World War I:
Schenck v. U.S. (1919)
Gitlow v. New York (1925)
World War II:
Ex parte Quirin (1942)
Korematsu v. U.S. (1944)
Steel Seizure Case (1952)
Duncan v. Kahanamoku (1946)
PAPER BIBLIOGRAPHY DUE
Assigned: Gross, chapter 7
Ramraj, Golbal Antiterrorism, chapter 7 (photocopy)
Art, Democracy & Counterterrorism, chapter 1 (photocopy)
Recommended: Ramraj et al. Global Antiterrorism
Art & Richardson, Democracy & Counterterrorism
Week 4: Separation of Powers: Judicial Review & the Expansion of Executive Power
Assigned: Posner, chapter 5
Yoo, TBA
Pious, chapter 2
Gross, chapter 3
The Prize Cases (1862)
United States v. Curtiss-Wright (1936)
Steel Seizure Case (1952)
See also cases assigned for week 6
Recommended: Locke, The Prerogative Power
Finn, Constitutions in Crisis
Ackerman, The Emergency Constitution
Posner, Not a Suicide Pact
Week 5: Terrorism & Civil Liberties
PAPER ROUGH DRAFT DUE
Assigned: Pious, chapters 1-8
Posner, chapters 6-7
Recommended: Finn, "Judicial Review and National Constitutions" (photocopy)
Stone, Perilous Times
Week 6: Guantanomo & Military Tribunals
Assigned: Margulies, skim entire book
Yoo, TBA
Posner, chapter 8
Pious, chapter 7; 10
Berkowitz, TBA
Hamdi v. Rumsfeld (2004)
Rasul v. Bush (2004)
Hamden v. Rumsfeld (2006)
Boumedienne v. Bush (2008?)
FINAL PAPER DUE
Assigned: Greenberg, TBA
Pious, chapter 9
Posner, chapter 6
Recommended: Dershowitz, Why Terrorism Works
Dejali, Torture & Democracy