On the commander in chief power

Southern California Law Review

Volumn 81, Issue 3, 2008, Pages 477-570

  Luban, David ^a  

^a GEORGETOWN UNIVERSITY   (United States)

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EID: 46149110084     PISSN: 00383910     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (463)

1. Justice Department Lawyer to Congress: 'The President Is Always Right' (C-Span television broadcast July 11, 2006), available at http://thinkprogress.org/2006/07/12/president-always-right (showing exchange between Steve Bradbury, Acting Deputy Att'y Gen., Department of Justice Office of Legal Counsel, and Senator Patrick Leahy (D-VT) during hearing on detained enemy combatant rights before the U.S. Senate Judiciary Committee).
2. SAMUEL P. HUNTINGTON, THE SOLDIER AND THE STATE: THE THEORY AND POLITICS OF CIVIL-MILITARY RELATIONS 221 (1957) (quoting Dennis Hart Mahan).
3. U.S. CONST. art. II, § 2.
4. Memorandum from Jay S. Bybee to Alberto R. Gonzales, Counsel to the President (Aug. 1, 2002), reprinted in THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB 172, 207 (Karen J. Greenberg & Joshua L. Dratel eds., 2005) [hereinafter TORTURE PAPERS].
5. The statutes in question are 18 U.S.C. §§ 2340-2340A (2000 & Supp. V 2005).
6. See STEPHEN GREY, GHOST PLANE: THE TRUE STORY OF THE CIA TORTURE PROGRAM 165, 225 (2006).
7. "Because the discussion in that memorandum concerning the President's Commander-in-Chief power... was - and remains - unnecessary, it has been eliminated from the analysis that follows." Memorandum from Daniel Levin to James B. Comey, Deputy Att'y Gen. (Dec. 30, 2004), reprinted in THE TORTURE DEBATE IN AMERICA 361, 362 (Karen J. Greenberg ed., 2006).
8. Memorandum from John C. Yoo to Timothy Flanigan, Deputy Counsel to the President (Sept. 25, 2001), reprinted in TORTURE PAPERS, supra note 4, at 1, 23-24.
9. Id. at 24.
10. For example, the president attached such a signing statement to post-Abu Ghraib legislation requiring safeguards to the independence of military lawyers. George W. Bush, Statement on Signing the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, 40 WEEKLY COMP. PRES. DOC. 2673 (Nov. 1, 2004), available at http://www.coherentbabble.com/signingstatements/Statements/SShr4200.pdf. The same was true with the McCain Amendment, which forbids cruel, inhuman, or degrading treatment of foreign detainees.
11. George W. Bush, Statement on Signing the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006 (Dec. 30, 2005), available at http://www.whitehouse.gov/news/releases/2005/12/20051230-8.html.
12. On President Bush's expansive use of signing statements, see Charlie Savage, Bush Challenges Hundreds of Laws, BOSTON GLOBE, Apr. 30, 2006, at A1.
13. The most exhaustive and definitive discussion of the commander in chief override, and more generally the question of whether Congress can constrain the president in his warmaking capacity, is David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb - Framing the Problem, Doctrine, and Original Understanding, 121 HARV. L. REV. 689 (2008) [hereinafter, Barron & Lederman, Framing the Problem];
14. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb - A Constitutional History, 121 HARV. L. REV. 941 (2008) [hereinafter Barron & Lederman, Constitutional History].
15. My own views are largely in line with those developed in Barron and Lederman's two-part article, although our arguments and approaches are different. Very similar to Barron and Lederman is Jules Lobel, Conflicts Between the Commander in Chief and Congress: Concurrent Power Over the Conduct of War (Univ. of Pittsburgh Sch. of Law Working Paper Series, Paper No. 74, 2007).
16. Hamdi v. Rumsfeld, 542 U.S. 507, 531 (2004). See Padilla v. Bush, 233 F. Supp. 2d 564, 606-08 (S.D.N.Y. 2002); Hamdi v. Rumsfeld, 296 F.3d 278, 283 (4th Cir. 2002). Although the Hamdi Court does find that Hamdi must be afforded process to challenge his detention, he gets a reduced process that "would not be offended by a presumption in favor of the Government's evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided." 542 U.S. at 534. Shifting the burden of proof in this way would provide "due regard to the Executive." Id.
17. United States v. Lindh, 212 F. Supp. 2d 541, 556 (E.D. Va. 2002).
18. See Padilla, 233 F. Supp. 2d at 564, 573-74.
19. Id. at 596-97.
20. See id. at 569. The evidence the government submitted consisted of an affidavit by a civilian official, Michael Mobbs, who was not made available for cross-examination. See id. at 572. A Mobbs affidavit was likewise the sole evidence the government presented against Hamdi. Hamdi v. Rumsfeld, 243 F. Supp. 2d 527, 528 (E.D. Va. 2002). Mobbs (a political appointee and former law partner of then-Under Secretary of Defense for Policy Douglas Feith) has no military experience and had not been in Afghanistan; his expertise was Russia, and his chief Pentagon responsibilities were planning on how to deal with oil-well fires in Iraq. See RAJIV CHANDRASEKARAN, IMPERIAL LIFE IN THE EMERALD CITY: INSIDE IRAQ'S GREEN ZONE 35 (2006) (noting that Mobbs had not visited the Middle East);
21. Bio: Michael H. Mobbs, FOXNEWS.COM, at http://www.foxnews.com/story/0,2933,84942,00.html (last visited Mar. 20, 2008) (noting that Mobbs is a Russia and Eastern Europe expert). Thus, the connection between the courtroom evidence and military expertise or "the battlefield" was nil.
22. Padilla, 233 F. Supp. 2d at 607-08 (quoting Dames & Moore v. Regan, 453 U.S. 654, 661 (1981)).
23. Id. at 608.
24. Id.
25. Hamdi v. Rumsfeld, 296 F.3d 278, 283 (4th Cir. 2002) (describing the government's position).
26. Padilla, 233 F. Supp. 2d at 608.
27. U.S. CONST. art. II, § 2, cl. 1.
28. The torture memo asserts that "[t]he Framers understood the Clause as investing the President with the fullest range of power understood at the time of the ratification of the Constitution as belonging to the military commander." Memorandum from Jay S. Bybee to Alberto R. Gonzales, supra note 4, at 205. As we shall see, that is a deeply debatable assertion, and, in any case, it begs the question of what the fullest range of power understood at the time of the ratification actually includes.
29. U.S. CONST. art. II, § 3.
30. See STANLEY WEINTRAUB, 15 STARS: EISENHOWER, MACARTHUR, MARSHALL: THREE GENERALS WHO SAVED THE AMERICAN CENTURY 447-54 (2007).
31. See supra note 1 and accompanying text.
32. On this point, I may be in disagreement with Barron and Lederman, who believe "that the Commander in Chief Clause does confer broad substantive war powers on the President." Barron & Lederman, Framing the Problem, supra note 11, at 770. They do acknowledge that the scope of these war powers is unclear from the text, and so the extent of our disagreement is uncertain. See id. Their term for what the commander in chief does is superintendence of the military. E.g., id. at 767. I agree with the connotations of this word, but it seems to me that superintending the military need not include broad substantive war powers. It does, no doubt, include powers to arrange logistics and training, as well as the ministerial functions needed to run an army. But in my view, these belong to the narrow power of military command.
33. See supra note 2 and accompanying text.
34. See infra notes 266-78 and accompanying text.
35. BOB WOODWARD, STATE OF DENIAL 389 (2006). One of the two people was then-National Security Advisor Condoleezza Rice; Woodward does not name the other. Id.
36. See Padilla v. Bush, 233 F. Supp. 2d 564, 607-08 (S.D.N.Y. 2002).
37. For a masterful book on this theme, see ANDREW J. BACEVICH, THE NEW AMERICAN MILITARISM: HOW AMERICANS ARE SEDUCED BY WAR (2005).
38. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 643-44 (1952) (Jackson, J., concurring).
39. 'I Have Control - Control of My Life,' L.A. TIMES, Aug. 5, 2005, at A20.
40. HUNTINGTON, supra note 2, at 20, 83.
41. JOHN KEEGAN, A HISTORY OF WARFARE 119, 124 (1993) [hereinafter KEEGAN, HISTORY OF WARFARE].
42. Ben MacIntyre, We Know Oetzi Had Fleas, His Last Supper Was Steak And . . . He Died 5,300 Years Ago, TIMES (London), Nov. 1, 2003, at 30.
43. THOMAS HOBBES, LEVIATHAN (Marshall Missner ed., Pearson Longman 2008) (1651).
44. On the early history of warfare, see KEEGAN, HISTORY OF WARFARE, supra note 36, at 115-36.
45. See ARTHUR W. H. ADKINS, MERIT AND RESPONSIBILITY: A STUDY IN GREEK VALUES 31-34 (1960).
46. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 646 (1952) (Jackson, J., concurring).
47. JOHN KEEGAN, THE MASK OF COMMAND 143 (1987) [hereinafter KEEGAN, MASK].
48. Id. at 123. "Alexander distinguished not at all between his role as ruler and his role as warrior. The two - in a world where states were held to be at war unless an agreement to observe peace specifically held otherwise, and in a kingdom whose court was also a headquarters - were identical." Id. at 186.
49. See Todd E. Pettys, Federal Habeas Relief and the New Tolerance for "Reasonably Erroneous "Applications of Federal Law, 63 OHIO ST. L.J. 731, 746-47 (2002).
50. Larry W. Yackle, The Figure in the Carpet, 78 TEX. L. REV. 1731, 1756 (2000).
51. Perhaps this friction between the lower courts and the Supreme Court serves to fuel Vicki Jackson's third narrative outlined at supra note 122 and accompanying text.
52. Williams v. Taylor, 529 U.S. 362 (2000). By happenstance, the Court decided another case named Williams v. Taylor (Michael Williams v. Taylor, 529 U.S. 420 (2000)) during the 2000-01 term. The cases are unrelated. Though for brevity, when this Note refers to "Williams v. Taylor" and "Williams," these are references only to Terry Williams v. Taylor, 529 U.S. 362 (2000). A reference to Michael Williams v. Taylor is so specified.
53. Williams, 529 U.S. at 370-71.
54. Strickland v. Washington, 466 U.S. 668, 688 (1984). Under Strickland, to succeed on his ineffective assistance of counsel claim, a petitioner has to show, first, deficient performance by the attorney, and second, prejudice as a result. Id. at 689-92. Prejudice means a reasonable possibility of a different outcome. Id. at 687, 694.
55. Pettys, supra note 130, at 748-49.
56. Ides, supra note 128, at 699.
57. Williams, 529 U.S. at 404.
58. Id. at 404-05 (quoting 28 U.S.C. § 2254(d)(1) (2000)).
59. Id. at 405-06.
60. STEPHEN MITCHELL, GILGAMESH: A NEW ENGLISH VERSION 69 (2004).
61. Id. at 71.
62. Id. at 72.
63. Id. at 198-99 (mirroring the description at 69-70).
64. HOMER, THE ILIAD bk. 18, 11. 490-540 (Robert Fitzgerald trans., Anchor Press/Doubleday 1974) (n.d.).
65. Id. at bk. 1, 11. 1-6.
66. Id.
67. Id. at bk. 24, 11. 139-44.
68. PLATO, THE REPUBLIC 52 (Allan Bloom trans., Basic Books 1968) (n.d.).
69. Id. at 94.
70. Deuteronomy 17:14-20 (Jewish Publication Society).
71. MOSHE HALBERTAL & AVISHAI MARGALIT, IDOLATRY 220 (Naomi Goldblum trans., 1992). The biblical version of the Gilgamesh problem is stated clearly in 1 Samuel: Samuel reported all the words of the LORD to the people, who were asking him for a king. He said, "This will be the practice of the king who will rule over you: He will take your sons and appoint them as his charioteers and horsemen, and they will serve as outrunners for his chariots. He will appoint them as his chiefs of thousands and of fifties; or they will have to plow his fields, reap his harvest, and make his weapons and the equipment for his chariots. He will take your daughters as perfumers, cooks, and bakers. He will seize your choice fields, vineyards, and olive groves, and give them to his courtiers. He will take a tenth part of your grain and vintage and give it to his eunuchs and courtiers. He will take your male and female slaves, your choice young men, and your asses, and put them to work for him. He will take a tenth part of your flocks, and you shall become his slaves. The day will come when you cry out because of the king whom you yourselves have chosen; and the LORD will not answer you on that day." 1 Samuel 8:10-18 (Jewish Publication Society).
72. This law is the lex cornelia majestatis. See Rubicon, in BRITANNICA ONLINE ENCYCLOPEDIA, at http://www.britannica.com/eb/article-9064321 (last visited Mar. 28, 2008);
73. KARL LOEWENSTEIN, THE GOVERNANCE OF ROME 45-46 (1973).
74. LOEWENSTEIN, supra note 56, at 46. See also 1 MARY BEARD, JOHN NORTH & SIMON PRICE, RELIGIONS OF ROME: A HISTORY 179 (1998);
75. THE WORLD OF ROME: AN INTRODUCTION TO ROMAN CULTURE 86 (Peter Jones & Keith Sidwell eds., 1997);
76. H.S. VERSNEL, TRIUMPHUS: AN INQUIRY INTO THE ORIGIN, DEVELOPMENT, AND MEANING OF THE ROMAN TRIUMPH 192 (1970).
77. Roman law limited imperium by granting Roman citizens the right of direct appeal to the people when magistrates imposed corporal punishment. The laws in question are the leges Valeriae and lege Porciae, described by Livy, Cicero, and Dionysius of Halicarnassus. See 1 TITUS LIVIUS, THE HISTORY OF ROME bk. 3, para. 8, at 187-89 (D. Spillan trans., American Book Co.) (n.d.), available at http://etext.virginia.edu/etcbin/toccer-new2?id=Liv1His. sgm&images=images/modeng&data=/texts/english/modeng/parsed&tag= public&part=133&division=div2 (last visited Mar. 28, 2008);
78. 3 DIONYSIUS OF HALICARNASSUS, ROMAN ANTIQUITIES bk. 5, ch. 19, at 59-61 (Loeb Classical Library ed., Earnest Cary trans., Harvard Univ. Press 1940) (n.d.), available at http://penelope.uchicago.edu/Thayer/E/Roman/Texts/Dionysius_of_Halicarnassus/ 5A*.html#19.4 (last visited Mar, 28, 2008);
79. id. bk. 5, para. 70, at 211-15, available at http://penelope.uchicago.edu/Thayer/E/Roman/Texts/Dionysius_of_Halicarnassus/ 5D*.html#70.2 (last visited Mar. 28, 2008).
80. See also George Long, Leges Valeriae, in A DICTIONARY OF GREEK AND ROMAN ANTIQUITIES 700 (William Smith ed., London, Murray 1875), available at http://penelope.uchicago. edu/Thayer/E/Roman/Texts/secondary/SMIGRA*/Leges_Valeriae.html (last visited Mar. 28, 2008).
81. The leges Porciae added sanctions to violations of the right of appeal. CICERO, ON THE COMMONWEALTH AND ON THE LAWS 50-51 (James E. G. Zetzel ed., Cambridge Univ. Press 1999) (n.d.);
82. 1 LIVIUS, supra, bk. 10, para. 9, at 682-83, available at http://etext.virginia.edu/etcbin/toccer-new2?id=Liv2His.sgm&images= images/modeng&data=/texts/english/modeng/parsed&tag=public&part= 176&division=div2 (last visited Mar. 28, 2008).
83. But this protection applied only within a mile of the city. Outside this boundary consular Imperium, including the power to punish, was unlimited. 1 LIVIUS, supra, bk. 3, para. 20, at 204-05, available at http://etext.virginia.edu/etcbin/toccer-new2?id=Liv1His.sgm&images= images/modeng&data=/texts/english/modeng/parsed&tag=public&part= 145&division=div2 (last visited Mar. 28,2008).
84. MITCHELL, supra note 44, at 94-95.
85. Id. at 96.
86. See id. at 97, 104.
87. See Alexander the Great, in BRITANNICA ONLINE ENCYCLOPEDIA, at http://www.britannica.com/eb/article-9106078 (last visited Mar. 13, 2008);
88. Richard I, in BRITANNICA ONLINE ENCYCLOPEDIA, at http://www.britannica.com/eb/article-6167 (last visited Mar. 13, 2008).
89. KEEGAN, MASK, supra note 42, at 91.
90. See, e.g., JAMES DAVID MEERNIK, THE POLITICAL USE OF MILITARY FORCE IN US FOREIGN POLICY 162 (2004);
91. P. W. SINGER, CORPORATE WARRIORS: THE RISE OF THE PRIVATIZED MILITARY INDUSTRY 25 (2003) [hereinafter SINGER, CORPORATE WARRIORS].
92. Immanuel Kant, Perpetual Peace: A Philosophical Sketch, in KANT'S POLITICAL WRITINGS 100 (Hans Reiss ed., H. B. Nisbet trans., 1970).
93. 1 GERHARD RITTER, THE SWORD AND THE SCEPTER: THE PROBLEM OF MILITARISM IN GERMANY 18-19 (Heinz Norden trans., 1969) (internal quotation marks and citation omitted).
94. Id. at 19.
95. See STEPHEN C. NEFF, WAR AND THE LAW OF NATIONS: A GENERAL HISTORY 91 (2005) (explaining how wars in the seventeenth and eighteenth centuries often arose out of personal disagreements among monarchs);
96. MARTIN VAN CREVELD, THE RISE AND DECLINE OF THE STATE 159-61 (1999) [hereinafter VAN CREVELD, RISE AND DECLINE].
97. VAN CREVELD, RISE AND DECLINE, supra note 68, at 159-61.
98. Kant, supra note 65, at 100.
99. G. M. GILBERT, NUREMBERG DIARY 278-79 (1947).
100. 26 ANNALS OF CONG. 956 (1814) (statement of Congressman Miller of New York).
101. For this and similar congressional utterances, see William Michael Treanor, Fame, the Founding, and the Power to Declare War, 82 CORNELL L. REV. 695, 753-54 (1997).
102. See 15 JAMES MADISON, "Helvidius" No. 4, in THE PAPERS OF JAMES MADISON 106, 108 (Thomas A. Mason, Robert A. Rutland & Jeanne K. Sisson eds., Virginia Univ. Press 1985). See infra text accompanying note 207.
103. 1 MARC BLOCH, FEUDAL SOCIETY 3-31 (L. A. Manyon trans., 1961) (discussing "Europe invaded and besieged"); id. at 145-56 (discussing the origin of vassalage relationships as forms of military protection).
104. See LYNN WHITE, JR., MEDIEVAL TECHNOLOGY AND SOCIAL CHANGE 27, 38 (1962). See also BLOCH, supra note 74, at 153-56 (connecting the introduction of the stirrup to forms of warfare and thence to forms of social organization).
105. Cf. KEEGAN, HISTORY OF WARFARE, supra note 36, at 285-86 (noting that while there is some debate on the origin of stirrups, their influence on warfare is undeniable).
106. KEEGAN, MASK, supra note 42, at 172.
107. Id. at 173.
108. See, e.g., ANNE CLIFFORD, THE MEMOIR OF 1603 AND THE DIARY OF 1616-1619, at 18 (Katherine O. Acheson ed., 2007).
109. This encounter is memorialized in the eponymous Old English poem The Battle of Maldon, in THE BATTLE OF MALDON AND SHORT POEMS FROM THE SAXON CHRONICLE 1 (Walter John Sedgefield ed., 1904).
110. 5 THE CHINESE CLASSICS 183 (James Legge ed. & trans., 2d ed. 1960),
111. quoted in MICHAEL WALZER, JUST AND UNJUST WARS: A MORAL ARGUMENT WITH HISTORICAL ILLUSTRATIONS 225 (1978).
112. MARTIN VAN CREVELD, COMMAND IN WAR 17, 39, 57 (1985) [hereinafter VAN CREVELD, COMMAND IN WAR];
113. VAN CREVELD, RISE AND DECLINE, supra note 68, at 119-20.
114. See KEEGAN, HISTORY OF WARFARE, supra note 36, at 319-33;
115. GEORGE QUESTER, OFFENSE AND DEFENSE IN THE INTERNATIONAL SYSTEM 47-48 (2d ed. 2002);
116. ROBERT ROUTLEDGE, DISCOVERIES AND INVENTIONS OF THE NINETEENTH CENTURY 170-71 (14th ed. 1903).
117. See VAN CREVELD, COMMAND IN WAR, supra note 81, at 51.
118. KEEGAN, MASK, supra note 42, at 63; NORMAN F. CANTOR, ALEXANDER THE GREAT: JOURNEY TO THE END OF THE EARTH 133 (2005).
119. See, e.g., R. NISBET BAIN, CHARLES XII AND THE COLLAPSE OF THE SWEDISH EMPIRE: 1682-1719, at 298-99 (London, Knickerbocker Press 1895);
120. 1 CARLTON J.H. HAYES, A POLITICAL AND SOCIAL HISTORY OF MODERN EUROPE 378 (1922).
121. "Since killing was now carried out at a distance by bullets that failed to distinguish between nobleman and commoner, it had in any case ceased being fun." VAN CREVELD, COMMAND IN WAR, supra note 81, at 52.
122. See PHILIP BOBBITT, THE SHIELD OF ACHILLES: WAR, PEACE, AND THE COURSE OF HISTORY 79 (2002).
123. See id. at 80; VAN CREVELD, RISE AND DECLINE, supra note 68, at 156-57.
124. NEFF, supra note 68, at 87-88.
125. Id. at 87; SINGER, CORPORATE WARRIORS, supra note 64, at 29.
126. See SINGER, CORPORATE WARRIORS, supra note 64, at 23.
127. See id. at 29; KEEGAN, MASK, supra note 42, at 175-76 (describing Napoleon's citizen-soldiers).
128. SINGER, CORPORATE WARRIORS, supra note 64, at 32-33.
129. See KEEGAN, MASK, supra note 42, at 131, 170-71.
130. Id. at 122-26.
131. See VAN CREVELD, COMMAND IN WAR, supra note 81, at 39.
132. See KEEGAN, HISTORY OF WARFARE, supra note 36, at 341.
133. VAN CREVELD, COMMAND IN WAR, supra note 81, at 22.
134. Id. at 112, 115-32.
135. Id. at 132.
136. See id. at 137-38.
137. See id. at 62-64 (describing Napoleon as "the most competent human being who ever lived"); KEEGAN, MASK, supra note 42, at 30, 327 (describing Frederick's mastery of the "Oblique Order" of attack, and Frederick and Wellington as "the masters of gunpowder warfare," despite that Wellington lived half a century after Frederick).
138. HANNAH SMITH, GEORGIAN MONARCHY: POLITICS AND CULTURE, 1714-1760, at 106 (2006).
139. William Hogeland, Inventing Alexander Hamilton, BOSTON REV., Nov.-Dec. 2007, at 21, 24, available at http://bostonreview.net/BR32.6/hogeland.php.
140. See WILLIAM O. STODDARD, THE LIVES OF THE PRESIDENTS: GEORGE WASHINGTON 298 (New York, White, Stokes & Allen 1886).
141. See generally WILLIAM HOGELAND, THE WHISKEY REBELLION: GEORGE WASHINGTON, ALEXANDER HAMILTON, AND THE FRONTIER REBELS WHO CHALLENGED AMERICA'S NEWFOUND SOVEREIGNTY (2006) (describing the history and motivation for the Whiskey Rebellion).
142. Huntington asserts that President Madison took a personal hand in organizing the defense of Washington, D.C. in 1814. HUNTINGTON, supra note 2, at 185. But this is not correct. Madison, together with several cabinet members, personally rode out to watch the Battle of Bladensburg five miles from the White House, and personally chewed out his secretary of war, General John Armstrong, for not helping General Winder organize the defenses. See Memorandum from James Madison on the Battle of Bladensburg (Aug. 24, 1814), available at http://www.constitution.org/jm/18140824_bladensburg. txt (last visited Mar. 28, 2008). But Madison played no role in planning the defense ("The un-ruliness [sic] of my horse prevented me from joining in the short conversation that took place"), nor in the battle that followed, other than moving to the rear the moment fighting began and "leaving military movements . . . to the military functionaries who were responsible for them." Id. Then, when the British routed the American forces, "I fell down into the road leading to the city and returned to it," joining the headlong retreat that henceforth became known as the "Bladensburg Races." See id.
143. 2 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 328 (Melvin M. Bigelow ed., Boston, Little, Brown & Co., 5th ed. 1891).
144. WILLIAM BLACKSTONE, 1COMMENTARIES *262.
145. Blackstone's description of the king as "generalissimo, or the first in military command," occurs in the chapter entitled "Of the King's Prerogative." The king's prerogative, Blackstone explains, is "that special pre-eminence, which the king hath, over and above all other persons, and out of the ordinary course of the common law, in right of his regal dignity." Id. at *239.
146. HUNTINGTON, supra note 2, at 187 (quoting WALTER BAGEHOT, THE ENGLISH CONSTITUTION, AND OTHER POLITICAL ESSAYS 72 (New York, D. Appleton & Co., rev. ed. 1893)). Great Britain abolished this separate post of commander in chief in 1895, but without restoring effective command to the monarch. Id.
147. See, e.g., DALE C. COPELAND, THE ORIGINS OF MAJOR WAR 79-117 (2000);
148. KING'S COMPLETE HISTORY OF THE WORLD WAR 80 (W.C. King ed., 1922);
149. Proclamation, Czar Nicholas II to Grand Duke Nicholas (Sept. 5, 1915), in 3 SOURCE RECORDS OF THE GREAT WAR 320, 320-21 (Charles F. Hörne ed., 1923).
150. The word Gröfaz abbreviates Grösster Feldherr aller Zeiten. RICHARD HUMBLE, HITLER'S GENERALS 3 (1974).
151. See FRIEDRICH PERCYVAL RECK- MALLECZEWEN, DIARY OF A MAN IN DESPAIR 174 (Paul Rubens trans., 1970) (sarcastic use of term by public);
152. Dean Andrew, Strategic Culture in the Luftwaffe - Did it Exist in World War II and Has it Transitioned into the Air Force?, 4 DEFENCE STUDIES 361, 366 (2004) (sarcastic use of term by German officers). However, the origin of the phrase was not sarcastic: it was German General Wilhelm Keitel's sycophantic description of Hitler after the fall of France in 1940.
153. TELFORD TAYLOR, THE ANATOMY OF THE NUREMBERG TRIALS: A PERSONAL MEMOIR 353 (1992). For an illuminating discussion of Hitler's "false heroic" commandership, see KEEGAN, MASK, supra note 42, at 235-310.
154. See ELIOT A. COHEN, SUPREME COMMAND: SOLDIERS, STATESMEN, AND LEADERSHIP IN WARTIME 175 (2002) (defending Johnson's participation);
155. PETER D. FEAVER, ARMED SERVANTS: AGENCY, OVERSIGHT, AND CIVIL-MILITARY RELATIONS 172 (2003);
156. DORIS KEARNS, LYNDON JOHNSON AND THE AMERICAN DREAM 330-31 (1976).
157. AIR FORCE ONE (Colombia Pictures Corp. 1997); INDEPENDENCE DAY (Twentieth Century-Fox Film Corp. 1996).
158. Gideon Rachman, Defining Moment: Michael Dukakis and the Battle for Commander-in-Chief FIN. TIMES, June 2, 2007, at 46 ("The image of Michael Dukakis posing in a tank must be a contender for the single worst-conceived photo opportunity in history. . . . President Bush's advisers might have pondered this lesson before putting their man on an aircraft-carrier against the backdrop of a fate-tempting banner proclaiming: 'Mission accomplished.'");
159. Bret Schulte, The Photo Op That Tanked, U.S. NEWS & WORLD REP., Jan. 28, 2008, at 51 ("The photo of Dukakis with a dopey grin and a huge helmet aboard a tank was turned into an ad ridiculing him as soft on defense.").
160. Hamdi v. Rumsfeld, 296 F.3d 278, 283 (4th Cir. 2002).
161. Hamdi v. Rumsfeld, 542 U.S. 507, 531 (2004).
162. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952).
163. Robert J. Bonner, Emergency Government in Rome and Athens, 18 CLASSICAL J. 144, 145, 150 (1922).
164. See id. at 145.
165. Id. at 145, 150.
166. CLINTON L. ROSSITER, CONSTITUTIONAL DICTATORSHIP: CRISIS GOVERNMENT IN THE MODERN DEMOCRACIES 26-27 (1948) (noting that Sulla and Caesar were the only Roman dictators with no externally imposed limitations on their terms of office and that after Caesar's death, the dictatorship was abolished); Victor Ehrenberg, Imperium Maius in the Roman Republic, 74 AM. J. OF PHILOLOGY 113, 123-29 (1953). Giorgio Agamben argues that the true prototype for contemporary rule by emergency decree is not the dictator, but a different Roman legal device, the iustitium, in which a senatus consultum suspended the law and called on officials, or sometimes on the entire people, to defend the state by whatever means necessary.
167. GIORGIO AGAMBEN, STATE OF EXCEPTION 41-51 (Kevin Attell trans., 2005) [hereinafter AGAMBEN, STATE OF EXCEPTION]. The difference, Agamben argues, is that the law continued in force under a dictator - although the dictator himself was not bound by it - whereas the iustitium established a "space without law." Id. at 51.
168. AGAMBEN, STATE OF EXCEPTION, supra note 121, at 4-5 (quoting THEODOR REINACH, DE L'ÉTAT DU SIÈGE: ÉTUDE HISTORIQUE ET JURIDIQUE 109 (Paris, F. Pichon 1885)).
169. Id. at 4-10; Max Radin, Martial Law and the State of Siege, 30 CAL. L. REV. 634, 638 (1942) (describing the concept of état de siège fictif or "constructive state of siege" as being codified in the Declaration passed by the Constitutional Assembly of the Second Republic in 1848 providing for the possibility of such in France).
170. AGAMBEN, STATE OF EXCEPTION, supra note 121, at 12.
171. Id. at 14-16. The device was an emergency suspension of constitutional rights under Article 48 of the Weimar constitution. Id. at 14-15. For a survey of rule by emergency decree in France, Germany, Switzerland, Italy, Great Britain, and the United States, see id. at 11-22.
172. CARL SCHMITT, POLITICAL THEOLOGY: FOUR CHAPTERS ON THE CONCEPT OF SOVEREIGNTY 5 (George Schwab trans., 1985).
173. Schmitt's concept of the exception is explored with great dialectical subtlety in AGAMBEN, STATE OF EXCEPTION, supra note 121, as well as GIORGIO AGAMBEN, HOMO SACER: SOVEREIGN POWER AND BARE LIFE (Daniel Heller-Roazen trans., 1998).
174. For a more straightforward discussion, see Oren Gross, The Normless and Exceptionless Exception: Carl Schmitt's Theory of Emergency Powers and the "Norm-Exception " Dichotomy, 21 CARDOZO L. REV. 1825 (2000).
175. Rubicon, supra note 56.
176. See Fredric M. Litto, Addison's Cato in the Colonies, 23 WM. & MARY Q. 431, 441, 447 (1966).
177. JOSEPH ADDISON, CATO, act V, sc. iv (1713), available at http://www.constitution.org/addison/cato_play.htm (last visited Mar. 28, 2008).
178. Id. at act II, sc. ii.
179. Id. at act IV, sc. iv.
180. Id. at act I, sc. i.
181. Id. at act I, sc. iii.
182. Id. at act IV, sc. iv.
183. BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 44 (rev. ed. 1992) (pointing to the "universal" popularity of Cato, and connecting it to Trenchard and Gordon's Cato Letters, a major source of colonial suspicion of an unchecked military authority in executive hands);
184. GARRY WILLS, CINCINNATUS: GEORGE WASHINGTON AND THE ENLIGHTENMENT 137 (1984); Litto, supra note 128, at 442 (documenting Cato's "transition . . . from pre-Revolutionary classic to instrument of rebellion"). Bailyn notes that while the colonists liked to pepper their writings with classical allusions, these frequently displayed their actual ignorance of the sources they were quoting - the one exception being their serious knowledge of Roman history. BAILYN, supra, at 24-25.
185. Litto, supra note 128, at 443-46. When Cato's dead son is brought before him, he says "[W]hat pity is it [t]hat we can die but once to save our country!" ADDISON, supra note 129, at act IV, sc. iv.
186. Litto, supra note 128, at 448.
187. WILLS, supra note 135, at 136.
188. See the passages indexed under Caesar's name in M. N. S. SELLERS, AMERICAN REPUBLICANISM: ROMAN IDEOLOGY IN THE UNITED STATES CONSTITUTION (1994).
189. Thomas P. Govan, Alexander Hamilton and Julius Caesar: A Note on the Use of Historical Evidence, 32 WM. & MARY Q. 475, 478 (1975) (quoting Letter from Alexander Hamilton to George Washington) (Aug. 18, 1792),
190. in 12 THE PAPERS OF ALEXANDER HAMILTON 252 (Harold C. Syrett & Jacob E. Cooke eds., 1967). Hamilton repeated this analogy in his third Catullus paper. Id. at 478-79.
191. 3 JOHN ADAMS, A DEFENCE OF THE CONSTITUTIONS OF GOVERNMENT OF THE UNITED STATES OF AMERICA 271-72 (London, Stockdale 1794) (1787).
192. On Caligula as a "monstrous" emperor, see C. SUETONIUS TRANQUILLUS, THE LIVES OF THE TWELVE CAESARS 435-38 (Loeb Classical Library 1913) (n.d.), available at http://penelope.uchicago.edu/Thayer/E/Roman/Texts/Suetonius/12Caesars/ Caligula*.html (last visited Mar. 28, 2008). On his assassination, see id. at 489-95.
193. Conveniently summarized in tabular form at Wikipedia.org, Praetorian Guard, at http://en.wikipedia.org/wiki/Praetorian_Guard (last visited Mar. 28, 2008).
194. See 2 SAMUEL R. GARDINER, HISTORY OF THE GREAT CIVIL WAR, 1642-1649, at 196 (Longmans, Green & Co. 1911) (1893) [hereinafter GARDINER, CIVIL WAR].
195. Id. at 192; DEREK HIRST, ENGLAND IN CONFLICT, 1603-1660: KINGDOM, COMMUNITY, COMMONWEALTH 230 (1999).
196. HIRST, supra note 145, at 236-39.
197. See 4 GARDINER, CIVIL WAR, supra note 144, at 245-46, 254-60.
198. See HIRST, supra note 145, at 253.
199. Id. at 259.
200. See id. at 278.
201. See id. at 283-315.
202. See id. at 316-27.
203. For a detailed history of the English Civil War, see generally GARDINER, CIVIL WAR, supra note 144;
204. SAMUEL RAWSON GARDINER, HISTORY OF THE COMMONWEALTH AND PROTECTORATE, 1649-1656 (AMS Press, Inc. 1965) (1901).
205. CHRISTOPHER HILL, THE WORLD TURNED UPSIDE DOWN: RADICAL IDEAS DURING THE ENGLISH REVOLUTION 92, 93 (1972). On the Levellers' ideas, see id. at 86-120; on the radicalism of the New Model Army, see id. at 46-58.
206. JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 143 (1996);
207. Lawrence Delbert Cress, Republican Liberty and National Security: American Military Policy as an Ideological Problem, 1783 to 1789, 38 WM. & MARY Q. 73, 88 (1981) [hereinafter Cress, Republican Liberty and National Security]. On the Newburgh mutiny, see WILLS, supra note 135, at 6-9.
208. THE FEDERALIST NO. 21, at 140 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
209. See Govan, supra note 140, at 477. It is evidence like this that makes Thomas Govan skeptical of Jefferson's report that Hamilton idolized Caesar. See id. at 479.
210. Brutus, X, N.Y. J., Jan. 24, 1788, available at http://www.constitution.org/afp/brutus10.htm (last visited Mar. 28, 2008).
211. "It is reasonable to assume that the commander-in-chief clause was noncontroversial because the Framers intended it to convey tightly circumscribed authority . . . ." W. Taylor Reveley, III, Constitutional Allocation of the War Powers Between the President and Congress: 1787-1788, 15 VA. J. INT'L L. 73, 113 (1974).
212. CHRISTOPHER HELLMAN & TRAVIS SHARP, CTR. FOR ARMS CONTROL AND NON-PROLIFERATION, THE FY 2009 PENTAGON SPENDING REQUEST - GLOBAL MILITARY SPENDING (2008), available at http://www.armscontrolcenter.org/ policy/securityspending/articles/fy09_dod_request_global/.
213. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 388 (Max Farrand ed., 1966) [hereinafter Farrand].
214. Byron W. Daynes, George Washington: Reluctant Occupant, Uncertain Model for the Presidency, in GEORGE WASHINGTON AND THE ORIGINS OF THE AMERICAN PRESIDENCY 3, 24 (Mark J. Rozell, William D. Pederson & Frank J. Williams eds., 2000);
215. 1 JAMES BISER WHISKER, THE AMERICAN COLONIAL MILITIA: INTRODUCTION TO THE AMERICAN COLONIAL MILITIA 172 (1997) (noting Washington's contempt for the militia's performance during the Revolutionary War);
216. DANIEL A. FARBER & SUZANNA SHERRY, A HISTORY OF THE AMERICAN CONSTITUTION 197 (2d ed. 2005) (noting a sarcastic quip by Washington in response to an advocate of a weak national army).
217. WILLIAM H. RIKER, SOLDIERS OF THE STATES: THE ROLE OF THE NATIONAL GUARD IN AMERICAN DEMOCRACY 41 (1957).
218. On the deterioration of the militia system before the Civil War, see id. at 21-40; on the size of the 1860 Army, see 5 HISTORICAL STATISTICS OF THE UNITED STATES: EARLIEST TIMES TO THE PRESENT: MILLENNIAL EDITION 5-354 (Susan B. Carter et al. eds., 2006) [hereinafter HISTORICAL STATISTICS].
219. See HISTORICAL STATISTICS, supra note 164, at 5-353. The size of the army spiked up during wartime mobilizations, including the War of 1812 (1812-1814), the Mexican War (1846-1848) and the Second Seminole War (1835-1842). See id.
220. 1 BLACKSTONE, supra note 107, at *408.
221. William S. Fields & David T. Hardy, The Third Amendment and the Issue of the Maintenance of Standing Armies: A Legal History, 35 AM. J. LEGAL HIST. 393, 397-99, 402-04 (1991).
222. See id. at 405-06.
223. LAWRENCE DELBERT CRESS, CITIZENS IN ARMS: THE ARMY AND THE MILITIA IN AMERICAN SOCIETY TO THE WAR OF 1812, at 18 (1982) [hereinafter CRESS, CITIZENS IN ARMS];
224. Lawrence Delbert Cress, Radical Whiggery on the Role of the Military: Ideological Roots of the American Revolutionary Militia, 40 J. OF HIST. OF IDEAS 43, 47 (1979) [hereinafter Cress, Radical Whiggery]. See also BAILYN, supra note 135, at 34-35 (describing Sidney's great influence on the colonists).
225. See, e.g., BAILYN, supra note 135, at 35-36, 44; FORREST MCDONALD, NOVUS ORDO SECLORUM: THE INTELLECTUAL ORIGINS OF THE CONSTITUTION 77-78 (1985).
226. John Trenchard & Thomas Gordon, No. 94, Against Standing Armies (Sept. 15, 1722), reprinted in 3 CATO'S LETTERS: OR, ESSAYS ON LIBERTY, CIVIL AND RELIGIOUS, AND OTHER IMPORTANT SUBJECTS (Ronald Hamowy ed., Liberty Fund 1995) (1755), available at http://oll.libertyfund.org/ files/1239/Trenchard_0226.03.pdf. By 1776, according to Lawrence Cress, a copy of Cato's Letters was in nearly 40 percent of colonial libraries. Similarly, Harrington and Sidney appeared on the shelves of or were read by many of the well-known Framers. Cress, Radical Whiggery, supra note 169, at 54.
227. Additionally, a New York newspaper serialized Trenchard's tract An Argument Shewing that A Standing Army is Inconsistent with a Free Government in the late 1760s. Id. at 55.
228. John Trenchard, No. 95, Further Reasonings Against Standing Armies (Sept. 22, 1722), reprinted in 3 CATO'S LETTERS, supra note 171.
229. ADAM SMITH, AN INQUIRY INTO THE NATURE AND CAUSES OF THE WEALTH OF NATIONS 658-68 (Edwin Cannan ed., Modern Library Ed., Random House 1937) (1776).
230. Id. at 667-68.
231. CRESS, CITIZENS IN ARMS, supra note 169, at 25-28.
232. DAVID HACKETT FISCHER, WASHINGTON'S CROSSING 33 (2004). See also 1 BLACKSTONE, supra note 107, at *414-15 (describing how the standing army was kept on a short leash).
233. THE DECLARATION OF INDEPENDENCE para. 13 (U.S. 1776).
234. ROBERT MIDDLEKAUFF, THE GLORIOUS CAUSE: THE AMERICAN REVOLUTION, 1763-1789, at 55 (rev. & expanded ed. 2005).
235. Id. at 198, 202-03, 209-12.
236. Id. at 242.
237. Cress, Radical Whiggery, supra note 169, at 58-59.
238. HUNTINGTON, supra note 2, at 143-44; Cress, Republican Liberty and National Security, supra note 155, at 89.
239. 2 Farrand, supra note 161, at 317.
240. A Democratic Federalist, Letter to the Editor, PA. HERALD, Oct. 17, 1787,
241. reprinted in DAVID E. YOUNG, THE ORIGIN OF THE SECOND AMENDMENT: A DOCUMENTARY HISTORY OF THE BILL OF RIGHTS IN COMMENTARIES ON LIBERTY, FREE GOVERNMENT AND AN ARMED POPULACE, 1787-1792, at 45, 47 (David E. Young ed., 2d ed. 1995) [hereinafter YOUNG, SECOND AMENDMENT].
242. Centinel II, Letter to the Editor, INDEPENDENT GAZETTEER, Oct. 24, 1787, reprinted in YOUNG, SECOND AMENDMENT, supra note 184, at 58, 59.
243. Pennsylvania Minority, The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to their Constituents, PA. PACKET, Dec. 18, 1787, reprinted in YOUNG, SECOND AMENDMENT, supra note 184, at 154, 174.
244. Brutus, supra note 158.
245. Philadelphiensis, The President As Military King (Anti-Federalist No. 74), FREEMAN'S J., Feb. 6 & 20, Apr. 9, 1788, available at http://www.thisnation.com/library/antifederalist/74.html (last visited Mar. 28, 2008).
246. Debates in the Convention of the Commonwealth of Massachusetts, on the Adoption of the Federal Constitution (Feb. 1, 1788) (testimony of Samuel Nason), in 2 ELLIOT'S DEBATES 125, 136 (Jonathan Elliot ed., 2d ed. 1937).
247. THE FEDERALIST NO. 29 (Alexander Hamilton), supra note 156, at 186. As Rakove notes, "The claim that adoption of the Constitution would lead to armed tyranny struck Federalists as the most fantastic of their opponents' demagogic pronouncements." RAKOVE, supra note 155, at 185.
248. The Debates in the Convention of the Commonwealth of Virginia, on the Adoption of the Federal Constitution (June 14, 1788) (testimony of George Nicholas), in 3 ELLIOT'S DEBATES, supra note 189, at 365, 391.
249. Id. at 392-93.
250. A sustained argument about this subject may be found in Treanor, supra note 72, who argues that the framers and ratifiers were deeply concerned that a president's desire for fame might lead him to launch unjustified wars. Id. at 700. Treanor believes that these concerns provide evidence that the Declare War Clause means that Congress has the primary power over war and peace. Id. I have gratefully gleaned source material I quote in this section from Treanor's interesting paper.
251. THE FEDERALIST NO. 34 (Alexander Hamilton), supra note 156, at 209.
252. THE FEDERALIST No. 4 (John Jay), supra note 156, at 46.
253. Brutus VII, Letter to the Editor, N.Y. J., Jan. 3, 1788, reprinted in 15 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 234, 236 (John P. Kaminski & Gaspare J. Saladino eds., 1984).
254. MONTESQUIEU: THE SPIRIT OF THE LAWS 139 (Anne M. Cohler, Basia Carolyn Miller & Harold Samuel Stone eds. & trans., 1989).
255. Id.
256. Foreign Spectator, An Essay on the Means of Promoting Federal Sentiments in the United States, INDEPENDENT GAZETTEER, Sept. 8, 1787.
257. The Debates in the Convention of the Commonwealth of Virginia, on the Adoption of the Federal Constitution (June 9, 1788) (testimony of Patrick Henry), in 3 ELLIOT'S DEBATES, supra note 189, at 150, 160.
258. Debates in the Legislature and in Convention of the State of South Carolina, on the Adoption of the Federal Constitution (Jan. 16, 1788) (testimony of Pierce Butler), in 4 ELLIOT'S DEBATES, supra note 189, at 253, 263.
259. Letter from Thomas Jefferson to James Madison (Sept. 6, 1789), in 15 THE PAPERS OF THOMAS JEFFERSON 392, 397 (Julian P. Boyd ed., 1958).
260. Letter from James Madison to Thomas Jefferson (Apr. 2, 1798), in 2 THE REPUBLIC OF LETTERS: THE CORRESPONDENCE BETWEEN THOMAS JEFFERSON AND JAMES MADISON 1776-1826, at 1031, 1032 (James Morton Smith ed., 1995).
261. JOHN ADAMS, DISCOURSES ON DAVILA: A SERIES OF PAPERS ON POLITICAL HISTORY, reprinted in 6 THE WORKS OF JOHN ADAMS 223, 260 (Charles Francis Adams ed., Boston, Little & Brown 1851).
262. Id.
263. Id. at 262-63.
264. 15 JAMES MADISON, "Helvidius " No. 4, in THE PAPERS OF JAMES MADISON, supra note 73, at 106, 108.
265. RON CHERNOW, ALEXANDER HAMILTON 567 (2004).
266. In this section I draw on Huntington's analysis in chapter 7 of THE SOLDIER AND THE STATE, supra note 2, at 163-92.
267. U.S. CONST. art. I, § 8.
268. Treanor references some of the dozens of major (and less major) scholars who have contributed to this debate. See Treanor, supra note 72, at 696-98.
269. Militia Act of 1792, sess. 1, ch. 28, 1 Stat. 264 (1792), available at http://memory.loc.gov/cgi-bin/ampage?collId=lls1&fileName=001/ lls1001.db&recNum=387 (last visited Mar. 28, 2008).
270. U.S. CONST. art. I, § 8 (emphasis added).
271. See Richard A. Epstein, Executive Power, the Commander in Chief, and the Militia Clause, 34 HOFSTRA L. REV. 317, 321 (2005).
272. U.S. CONST. art. II, § 2, cl. 2; 10 U.S.C. § 601(a) (2000).
273. U.S. CONST. amends. II-III.
274. See U.S. CONST. art. I, § 6, cl. 2. By contrast, the Ineligibility Clause of the same section leaves open the possibility for senators and representatives to join the military during their term of office (presumably, taking leave from the office because of the Incompatibility Clause). See id. For discussion, see HUNTINGTON, supra note 2, at 165-66.
275. Luther Martin reported to the Maryland legislature that "[o]bjections were made to that part of this article, by which the President is appointed Commander-in-chief . . . and it was wished to be so far restrained, that he should not command in person; but this could not be obtained." 3 Farrand, supra note 161, at 217-18. At the Virginia ratification debate, Patrick Henry warned in vain that "the President, in the field, at the head of his army, can prescribe the terms on which he shall reign master." The Debates in the Convention of the Commonwealth of Virginia, on the Adoption of the Federal Constitution (June 5, 1788) (testimony of Patrick Henry), in 3 ELLIOT'S DEBATES, supra note 189, at 35, 59. See also The Debates in the Convention of the Commonwealth of Virginia, on the Adoption of the Federal Constitution (June 14, 1788) (testimony of Patrick Henry), in 3 ELLIOT'S DEBATES, supra note 189, at 410, 411 (warning about the dangers of an empowered president). Even the Committee on Detail's version of the Commander in Chief Clause specifying that the President occupies that role "by Virtue of his Office" (and thus not by virtue of his military abilities) disappeared in revision. 2 Farrand, supra note 161, at 158.
276. 3 Farrand, supra note 161, at 617, 624.
277. See supra note 106 and accompanying text.
278. See U.S. CONST. art. II, § 3.
279. These are issues such as whether the laws the president must faithfully execute include the Constitution (see, e.g., In re Neagle, 135 U.S. 1, 5-7 (1890) (yes)); whether executive agency interpretations of law have primacy (Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) (yes)); whether presidents can be compelled by third parties to execute laws (e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 576-77 (1992) (no)); whether presidents can, as a matter of discretion, refuse to execute laws (Kendall v. United States, 37 U.S. 524 (1838) (holding "[t]o contend that the obligations imposed on the President to see the laws faithfully executed, implies a power to forbid their execution; is a novel construction of the constitution, and is entirely inadmissible")). But presidents do it anyway. See, e.g., Frank H. Easterbrook, Presidential Review, 40 CASE W. RES. L. REV. 905, 914-15 (1990);
280. Joel K. Goldstein, The Presidency and the Rule of Law: Some Preliminary Explorations, 43 ST. LOUIS U. L.J. 791, 809 (1999). Though these issues have some relevance for our topic, it would be too much of a diversion to consider them here.
281. President Abraham Lincoln, July 4th Message to Congress (July 4, 1861), available at http://millercenter.org/scripps/archive/speeches (last visited Mar. 28, 2008).
282. Id.
283. For detailed discussion of the relationship between this revolutionary experience and the subsequent constitutional understanding of the commander in chief authority, see Barron & Lederman, Framing the Problem, supra note 11, at 772-92.
284. Reveley, supra note 159, at 91.
285. FISCHER, supra note 176, at 143-44.
286. Id. at 144-45.
287. 1 Farrand, supra note 161, at 89.
288. Id. at 97.
289. Id. at 244.
290. 2 Farrand, supra note 161, at 116.
291. Id. at 185.
292. THE FEDERALIST NO. 70 (Alexander Hamilton), supra note 156, at 426.
293. Id. at 424.
294. THE FEDERALIST NO. 74 (Alexander Hamilton), supra note 156, at 447.
295. Debates in the Convention of the State of North Carolina, on the Adoption of the Federal Constitution (July 28, 1788) (testimony of James Iredell), in 4 ELLIOT'S DEBATES, supra note 189, at 106-07.
296. See 2 Farrand, supra note 161, at 318-19.
297. THE FEDERALIST NO. 70 (Alexander Hamilton), supra note 156, at 423.
298. In the New York debate, Hamilton made the point explicitly: "Establish a weak government, and you must at times overleap the bounds. Rome was obliged to create dictators." The Notes of the Secret Debates of the Federal Convention of 1787 (Yates's Minutes) (June 19, 1787) (testimony of Alexander Hamilton), in 1 ELLIOT'S DEBATES, supra note 189, at 423, 427. Elsewhere, Hamilton refers to "the mad project of creating a dictator.'" The Debates in the Convention of the State of New York, on the Adoption of the Federal Constitution (June 28, 1788) (testimony of Alexander Hamilton), in 2 ELLIOT'S DEBATES, supra note 189, at 360. Farrand contains only two casual, cryptic references to the institution of dictatorship (one of them Hamilton's). See 1 Farrand, supra note 161, at 73, 329. The small handful of references to Roman dictators in the state ratification debates is uniformly unflattering.
299. Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850); Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804).
300. RIKER, supra note 163, at 67.
301. Id. at 41.
302. Id. at 46-55.
303. See generally Cecelia M. Kenyon, Men of Little Faith: The Anti-Federalists on the Nature of Representative Government, 12 WM. & MARY Q. 3 (1955) (discussing Anti-Federalists).
304. See Marybeth Peterson Ulrich, Infusing Normative Civil-Military Relations Principles in the Officer Corps, in THE FUTURE OF THE ARMY PROFESSION 655, 665-70 (Lloyd J. Matthews ed., 2d ed. 2005).
305. David H. Petraeus, Op-Ed., Battling for Iraq, WASH. POST, Sept. 26, 2004, at B7.
306. THOMAS E. RICKS, FIASCO: THE AMERICAN MILITARY ADVENTURE IN IRAQ 394, 410 (2006). However, Ricks also notes that around the same time Rand Corporation researchers found "a gap of sixty thousand between the number of trained police claimed by the top Iraqi police officer and the number cited by U.S. officials." Id. at 395. Petraeus's Op-Ed cited high numbers of trained and equipped Iraqi police; and Iraqi police were a far more problematic force than Petraeus represented. Id. at 340-41.
307. Lawrence J. Korb, The Wrong Man to Assess the Iraq War: Gen. Petraeus, the Architect of the Surge, Can't Offer an Unbiased Opinion on its Effectiveness, STAR-LEDGER (Newark, N.J.), May 30, 2007, at 15.
308. MORRIS J. MACGREGOR, JR., INTEGRATION OF THE ARMED FORCES, 1940-1965, at 348 (1981) (racial integration);
309. Lucinda Joy Peach, Gender Ideology in the Ethics of Women in Combat, in IT'S OUR MILITARY, TOO!: WOMEN AND THE U.S. MILITARY 156 (Judith Hicks Stiehm ed., 1996) (gender integration);
310. Richard H. P. Sia, Chiefs May Bar Gays in Combat; Top Brass Seek to Avoid Full Integration, BALT. SUN, Feb. 24, 1993, at 1A (integration of gays).
311. FEAVER, supra note 112, at 259-62.
312. See id. at 67; BACEVICH, supra note 32, at 39-40.
313. JAMES KITFIELD, PRODIGAL SOLDIERS 151 (1995).
314. LEWIS SORLEY, THUNDERBOLT: GENERAL CREIGHTON ABRAMS AND THE ARMY OF HIS TIMES 363-64 (1992).
315. FEAVER, supra note 112, at 140-45.
316. See ARTHUR M. SCHLESINGER, JR., THE IMPERIAL PRESIDENCY 136 (1973).
317. Even the Carter Administration was not immune. Peter E. Quint, The Separation of Powers Under Carter, 62 TEX. L. REV. 785 (1984).
318. For a comprehensive overview of the subject, see CHARLIE SAVAGE, TAKEOVER: THE RETURN OF THE IMPERIAL PRESIDENCY AND THE SUBVERSION OF AMERICAN DEMOCRACY (2007).
319. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). Barron and Lederman demonstrate in exhaustive detail that conflicts between Congress and the commander in chief have a long history. Barron & Lederman, Constitutional History, supra note 11.
320. Bush, Statement on Signing the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, supra note 10, at 2673.
321. Id.
322. SAVAGE, supra note 258, at 279-89.
323. Glenn Sulmasy & John Yoo, Challenges to Civilian Control of the Military: A Rational Choice Approach to the War on Terror, 54 UCLA L. REV. 1815, 1834 (2007).
324. ABA Model Rule 2.1 requires lawyers to offer candid and independent advice to clients; this rule appears in the rules of conduct for all three services' JAG Corps. MODEL RULES OF PROF'L CONDUCT R. 2.1 (2008);
325. DEP'T OF THE NAVY RULES OF PROF'L CONDUCT R. 2.1, JAGINST 5803.1C (2004);
326. RULES OF PROF'L CONDUCT FOR LAWYERS R. 2.1, ARMY REG. 27-26 (1992);
327. AIR FORCE RULES OF PROF'L CONDUCT, R. 2.1 (2005).
328. For discussion of the independent-advice requirement, see DAVID LUBAN, LEGAL ETHICS AND HUMAN DIGNITY 153-58, 197-204 (2007).
329. The two signing statements are related. JAG advice to military commanders bases itself on the law of war, which prohibits cruel or humiliating treatment of captives. See, e.g., Geneva Convention Relative to the Treatment of Prisoners of War arts. 3, 13, 14, Aug. 12, 1949, reprinted in THE GENEVA CONVENTIONS OF AUGUST 12, 1949, at 77, 77, 83, 84 (Geneva, International Committee of the Red Cross 1949); Geneva Convention Relative to the Protection of Civilian Persons in Time of War arts. 3, 27, 31, Aug. 12, 1949, reprinted in THE GENEVA CONVENTIONS OF AUGUST 12, 1949, supra, at 155, 156, 167, 168. JAG independence would interfere with the kind of cruel treatment that the first signing statement apparently asserts is the commander in chief's prerogative.
330. I am reluctant to label Kosovo adventuristic because of its circumspectly limited scope, but I recognize that many critics, both on the political right and the antiwar left, regard it as such. It had, at best, slender justification under international law, and President Clinton's early announcement that he would not use ground troops flew in the face of military advice. These are symptoms of adventurism. However, I accept that the humanitarian catastrophe was sufficient justification for the war. On these points see David Luban, Intervention and Civilization: Some Unhappy Lessons of the Kosovo War, in GLOBAL JUSTICE AND TRANSNATIONAL POLITICS: ESSAYS ON THE MORAL AND POLITICAL CHALLENGES OF GLOBALIZATION 79 (Pablo de Greiff & Ciaran Cronin eds., 2002).
331. See supra note 30 and accompanying text.
332. RICKS, supra note 248, at 99.
333. H. R. MCMASTER, DERELICTION OF DUTY: LYNDON JOHNSON, ROBERT MCNAMARA, THE JOINT CHIEFS OF STAFF, AND THE LIES THAT LED TO VIETNAM (1997).
334. The book is deeply influential in the military, in part because of McMaster's distinguished military career; he is currently a top commander in Iraq. Simon Tisdall, Military Chiefs Give US Six Months to Win Iraq War, GUARDIAN (London), Feb. 28, 2007, available at http://www.guardian.co.uk/world/2007/feb/28/iraq.usa (describing McMaster as part of "elite team of officers advising US commander General David Petraeus in Baghdad . . . who are leading experts in counter-insurgency").
335. Id. at 4-5.
336. Id. at 6.
337. Id. at 29-30.
338. See id. at 18, 327-30.
339. See id. at 77-78, 94, 105-06.
340. Id. at 157.
341. Id. at 158.
342. WILLIAM FAULKNER, REQUIEM FOR A NUN 92 (1951).
343. COHEN, supra note 112, at 25, 213.
344. See supra note 173 and accompanying text.
345. WOODWARD, supra note 30, at 240-41.
346. Id. at 335-36.
347. Id. at 379-80.
348. Id. at 241.
349. Id. at 241-42.
350. CHANDRASEKARAN, supra note 16, at 28-37; RICKS, supra note 248 at 96-111; WOODWARD, supra note 30, at 316-17. Specifically, there was no plan (and not enough troops) to provide immediate security and prevent looting; no plan to secure caches of conventional weapons that Saddam Hussein had distributed throughout Iraq and which helped arm the insurgency; no plan to prevent the escape of high-level Baathists who later coordinated the insurgency; no plan to restore electricity (although there was a plan -which turned out to be unnecessary - for disaster assistance to internally displaced persons); and not even a plan to get Jay Garner, the first head of the occupation authority, into Iraq with his team. See CHANDRASEKARAN, supra note 16, at 41-44 (Garner); RICKS, supra note 248, at 135-36 (looting), 145-46 (weapons caches), 150-51 (looting), 190-91 (escape of Baathists to Syria); 154-55 (electricity); WOODWARD, supra note 30, at 169-70 (Garner). As all three writers report, a great deal of advance planning for the occupation had gone on in the State Department; but the Defense Department commandeered the occupation portfolio, and in one telling episode Rumsfeld and Cheney prevented Garner from adding two experienced and knowledgeable members of the State Department team to his own, because one of them was skeptical of Ahmad Chalabi, the Iraqi exile leader who neoconservatives had anointed as the future leader of Iraq. WOODWARD, supra note 30, at 125-29; RICKS, supra note 248, at 101-04; CHANDRASEKARAN, supra note 16, at 36-37.
351. Padilla v. Bush, 233 F. Supp. 2d 564, 607-08 (S.D.N.Y. 2002).
352. HUNTINGTON, supra note 2, at 163.
353. Id. at 403.
354. Id. at 177, 401-03.
355. Id. at 466.
356. Id. at 465. On Huntington's account of liberalism, see id. at 143-62; on business conservatism, see id. at 222-27, 289-90. For Huntington, liberalism in military affairs "constituted the gravest domestic threat to American military security." Id. at 457.
357. Id. at 465.
358. Id.
359. See id.
360. Id. at 20.
361. FEAVER, supra note 112, at 11.
362. HUNTINGTON, supra note 2, at 164-65.
363. Id. at 30-31.
364. See RITTER, supra note 66, at 41-42.
365. See CARL VON CLAUSEWITZ, ON WAR (Michael Howard & Peter Paret eds. & trans., Princeton Univ. Press 1976) (1832).
366. See also AZRIEL LORBER, MISGUIDED WEAPONS: TECHNOLOGICAL FAILURE AND SURPRISE ON THE BATTLEFIELD 11-12 (2002) (describing Clausewitz and On War as "probably [having] had the most influence on military thought");
367. WILLIAM R. POLK, NEIGHBORS AND STRANGERS: THE FUNDAMENTALS OF FOREIGN AFFAIRS 76 (1997) (identifying Clausewitz as "warfare's most famous analyst").
368. See HUNTINGTON, supra note 2, at 42-43, 48, 198-99.
369. See, e.g., KEEGAN, MASK, supra note 42, at 172-74; V.G. KIERNAN, COLONIAL EMPIRES AND ARMIES 1815-1960, at 18, 19 (rev. ed. 1998); John Shy, Jomini, in MAKERS OF MODERN STRATEGY: FROM MACHIAVELLI TO THE NUCLEAR AGE 143, 160-61 (Peter Paret ed., 1986).
370. HUNTINGTON, supra note 2, at 10.
371. See CLAUSEWITZ, supra note 300, at 87 (describing war as "[a] political instrument, [and] a continuation of political activity by other means").
372. HUNTINGTON, supra note 2, at 83.
373. Id. at 77.
374. See MODEL RULES OF PROF'L CONDUCT R. 1.2(a) (2004). I should add that many lawyers and theorists, myself included, reject this view of legal professionalism as neutral partisanship. Those taking this view argue that conscience cannot be subordinated to professional duty the way that Huntington suggests.
375. See, e.g., DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY 126-27 (1988).
376. HUNTINGTON, supra note 2, at 81-83.
377. 1 BLACKSTONE, supra note 107, at *414.
378. "What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits, and interests?" THE FEDERALIST NO. 29 (Alexander Hamilton), supra note 156, at 186.
379. HUNTINGTON, supra note 2, at 83.
380. Id. at 69.
381. For Powell's skepticism of the Kosovo War, see supra note 251 and accompanying text. For Powell's skepticism of the Persian Gulf War, see, for example, Steven Metz, Iraq and the Evolution of American Strategy, in PRESIDENTIAL POLICIES AND THE ROAD TO THE SECOND IRAQ WAR: FROM FORTY ONE TO FORTY THREE 241, 245 (John Davis ed., 2006).
382. HUNTINGTON, supra note 2, at 69, 79. In a famous passage, Huntington writes, "The military ethic is thus pessimistic, collectivist, historically inclined, power-oriented, nationalistic, militaristic, pacifist, and instrumentalist in its view of the military profession. It is, in brief, realistic and conservative." Id. at 79.
383. Id. at 83.
384. Id. at 186-87. At one point, Huntington suggests that objective civilian control requires "a pyramid of authority culminating in a single civilian head," rather than the separated war powers of the U.S. Constitution, which he regards as "a perpetual invitation, if not an irresistible force, drawing military leaders into political conflicts." Id. at 163, 177. But this is a mistake. For one thing, unifying power in presidential hands would hardly solve the problem of keeping military officers apolitical. Just the contrary: subordinating the entire military to a single politician seems like a perfect recipe for pliant generals who tell the politician whatever he or she wants to hear rather than offering candid, independent military advice. This is already a danger, as H. R. McMaster's influential critique of the Vietnam-era JCS illustrates. MCMASTER, supra note 269. More fundamentally, it is hard to see what alternative to the separation of powers Huntington has in mind. Abolishing the separation of war powers would mean transferring the power to declare and fund wars into the president's hands - in effect, rolling the clock back centuries to a time when monarchs could tax at will to fund their wars. Eventually, Huntington concedes that abolishing the separation of powers would not be worth the price. HUNTINGTON, supra note 2, at 191.
385. HUNTINGTON, supra note 2, at 308.
386. Id. at 190.
387. Id. at 400-12.
388. Id. at 190.
389. Id. at 179.
390. See id. at 72-73.
391. See COHEN, supra note 112, at 76, 84, 129-30, 158-59, 167-68, 242.
392. See supra note 25 and accompanying text.
393. VAN CREVELD, COMMAND IN WAR, supra note 81, at 237.
394. HARRY S. TRUMAN, 1945: YEAR OF DECISIONS: MEMOIRS BY HARRY S. TRUMAN 421-22 (1955).
395. COHEN, supra note 112, at 129-30.
396. For a detailed discussion of the relative roles of the President and Congress in politicomilitary decisions, see Barron & Lederman, Constitutional History, supra note 11. Exhaustively canvassing both framing-era and subsequent sources, Barron and Lederman argue that the president and Congress have overlapping and concurrent powers in Youngstown Category III ("lowest ebb") cases. Id. at 1099-112;
397. Barron & Lederman, Framing the Problem, supra note 11, at 693-94 (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring)).
398. The "high" and "low" terminology is Cohen's. COHEN, supra note 112, at 242.
399. McMaster demonstrates this in painful detail throughout his book. For a summary statement, see MCMASTER, supra note 269, at 326.
400. WEINTRAUB, supra note 25, at 106.
401. Id.
402. COHEN, supra note 112, at 242.
403. Tim Golden, After Terror, a Secret Rewriting of Military Law, N.Y. TIMES, Oct. 24, 2004, at A1, A12.
404. Regarding the pro-executive-power prior agenda, see, for example, Chitra Ragavan, Cheney's Guy, U.S. NEWS & WORLD REPORT, May 29, 2006, at 32, available at http://www.usnews.com/ usnews/news/articles/060529/29addington.htm;
405. James Taranto, A Strong Executive, WALL ST. J., Jan. 28, 2006, at A8, available at http://home.nyc.rr.com/taranto/cheney. htm. See generally SAVAGE, supra note 258, at 46-84 (describing executive power agenda of unitary executive enthusiasts).
406. Cohen defends the inclusion of "low" domestic politics among the legitimate reasons for leaders to intervene in military decisions, but only when they also have "high" military purposes. See COHEN, supra note 112, at 242. But it is important to tread carefully in this argument. Cohen writes, "President Lincoln wants a victory at Atlanta in the summer of 1864 in order to crush the Confederacy - but also to boost his own chances of reelection, which in turn is necessary for the ultimate victory of the Union." Id. (emphasis added). The italicized phrase goes too far. The example is unconvincing; despite McClellan's less than stellar command earlier in the war, there is no reason to suppose that he would have lost or conceded the war had he been elected; he repudiated the antiwar plank of his party's platform. See A. Wilson Greene, "I Fought the Battle Splendidly": George B. McClellan and the Maryland Campaign, in ANTIETAM: ESSAYS ON THE 1862 MARYLAND CAMPAIGN 56, 56-83 (Gary W. Gallagher ed., 1989);
407. 1 WILMER L. JONES, GENERALS IN BLUE AND GRAY: LINCOLN'S GENERALS 85, 86 (2004). Probably every president thinks that his continuation in power is necessary, but that is delusion.
408. See Edward G. Coffman, The Long Shadow of The Soldier and the State, 55 J. MILITARY HIST. 69 (1991).
409. Don M. Snider, The U.S. Army as Profession, in THE FUTURE OF THE ARMY PROFESSION, supra note 246, at 3, 7.
410. Id. at 8-16.
411. For an illuminating and admiring survey of the remarkable range of operations - from MOOTW to hot wars - that today's U.S. military undertakes, see ROBERT D. KAPLAN, IMPERIAL GRUNTS: THE AMERICAN MILITARY ON THE GROUND (2005).
412. That is one reason that the "Future of the Army Profession" project of West Point's Center for the Professional Military Ethic has made extensive use of Andrew Abbott's studies of professional jurisdictions and turf-competition among professions for jurisdiction over functions in understanding modern military professionalism. Snider, supra note 337, at 17-21.
413. Here the seminal work is the manifesto of the Center for the Professional Military Ethic: DON M. SNIDER, JOHN A. NAGL & TONY PFAFF, ARMY PROFESSIONALISM, THE MILITARY ETHIC, AND OFFICERSHIP IN THE 21ST CENTURY (1999), available at http://www. strategicstudiesinstitute.army.mil/pdffiles/PUB282.pdf.
414. SINGER, CORPORATE WARRIORS, supra note 64, at 62-64, 66-70.
415. See SINGER, CORPORATE WARRIORS, supra note 64; P. W. Singer, Outsourcing War, FOREIGN AFF., Mar.-Apr. 2005, at 119, 122 (discussing the prominent role played in Iraq by "the coalition of the billing").
416. 10 U.S.C. § 152(c) (2000). The reason for the reorganization was the perception that interservice rivalries had hampered military effectiveness, and thus that the chiefs of staff should not be part of the chain of command. That way, combatant commanders could exercise unified command over multiservice forces. See S. REP. No. 99-280, at 25 (1986).
417. See 10 U.S.C. § 152(c).
418. RICKS, supra note 248, at 96-100. On the later realization that far more troops were necessary, see, for example, WOODWARD, supra note 30, at 302.
419. RICKS, supra note 248, at 156.
420. Vernon Loeb, One 'Chief Commands: Others Are Out of CINC, WASH. POST, Oct. 29, 2002, at A19.
421. See generally FEAVER, supra note 112, at 54-117 (elaborating a principal-agent model of civilian-military relations).
422. Id. at 172.
423. Id. at 284-85.
424. See COHEN, supra note 112, at 226; FEAVER, supra note 112, at 7-9.
425. COHEN, supra note 112.
426. See supra text accompanying note 316.
427. Dana Milbank, Bush's Summer Reading List Hints at Iraq, WASH. POST, Aug. 20, 2002, at A11. I am referring not only to the run-up to the Iraq war, about which Thomas Ricks's Fiasco, supra note 248, provides a detailed description of the decisionmaking process, but also interrogation policies and the torture memo, whose contents were concealed from the head JAGs until many months later. See Memoranda from the Four Chief Judge Advocates General, reprinted in THE TORTURE DEBATE IN AMERICA, supra note 7, at 377-91 (detailing how they learned, six months after the fact, about the torture memo).
428. See also Jane Mayer, Annals of the Pentagon: The Memo, THE NEW YORKER, Feb. 27, 2006, at 32, available at http://www.newyorker.com/fact/content/articles/060227fa_fact (detailing unsuccessful efforts by Navy General Counsel Alberto Mora to influence and remain informed about detainee treatment policies). I do not mean to suggest that Cohen's book influenced the decisionmaking process, or to tar his arguments by associating them with policies that were not his topic; but his view of "supreme command" harmonizes with the administration's expansive view of the commander in chief power as well as Rumsfeld's combative efforts to restructure the military and bring it to heel - efforts that culminated in the decision to invade Iraq using too few troops to stabilize the country.
429. COHEN, supra note 112, at 172-207.
430. This is assuming that his historical scholarship is sound, which I have no reason to doubt and insufficient competence to judge.
431. COHEN, supra note 112, at 30-31. Lincoln did have one major strategic insight, namely that the Union forces should concentrate on defeating the Confederate armies rather than capturing Richmond; and his eventual choice of Grant as supreme commander flowed from his understanding of strategy.
432. See id. at 66-79.
433. Id. at 114. Cohen also quotes Lord Ismay that "not once during the whole war did [Churchill] overrule his military advisers on a purely military question." Id. at 118 (citation omitted).
434. See id. at 142-72.
435. On the propriety of Lincoln's claims to extraordinary war powers - his suspension of habeas corpus, his calling out of the militia and issuing calls for troops, and his issuance of the Emancipat ion Proclamation - see the judicious discussion in DANIEL FARBER, LINCOLN'S CONSTITUTION 144-75 (2003).
436. COHEN, supra note 112, at 211.
437. Id. at 214.
438. Id. at 215.
439. Id. at 224.
440. Id. at 218.
441. Id. at 185.
442. Id. at 212.
443. VAN CREVELD, COMMAND IN WAR, supra note 81, at 244-45.
444. Id. at 246.
445. See id.
446. COHEN, supra note 112, at 112, 177-80.
447. FEAVER, supra note 112, at 70.
448. See Ricks's incisive discussion of the conceptual unpreparedness of the U.S. Army for postcombat operations in Iraq. RICKS, supra note 248, at 127-33. McMaster, deeply critical of the civilian planners in the Johnson administration, does not paint the JCS in a more favorable light. When they could agree with each other, their consistent advice was to launch an all-out war on North Vietnam, ignoring concerns that doing so might provoke war with China and the USSR. But more typically the Chiefs' fierce interservice rivalries prevented them from reaching agreement. Astoundingly, at one meeting the Air Force Chief of Staff challenged the Army Chief of Staff to an aerial dogfight to settle a disagreement. MCMASTER, supra note 269, at 114.
449. See, e.g., DOUGLAS E. ROSENTHAL, LAWYER AND CLIENT: WHO'S IN CHARGE? (1974) (concluding that those clients who were assertive received better treatment than those who were passive).
450. COHEN, supra note 112, at 208-24.
451. See Barron & Lederman, Framing the Problem, supra note 11, at 767-68.
452. Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting) ("General propositions do not decide concrete cases.").
453. U.S. DEP'T OF JUSTICE, LEGAL AUTHORITIES SUPPORTING THE ACTIVITIES OF THE NATIONAL SECURITY AGENCY DESCRIBED BY THE PRESIDENT 1 (2006).
454. This is the conclusion that Barron and Lederman defend in great detail. See Barron & Lederman, Framing the Problem, supra note 11, at 800-04. See also Lobel, supra note 11, at 4.
455. BACEVICH, supra note 32, at 2.
456. RITTER, supra note 66, at 5.
457. Id. at 6 (citation omitted) (quoting General Alfred Krauss).
458. CARL SCHMITT, THE CONCEPT OF THE POLITICAL 26-33 (George Schwab trans., expanded ed. 1997).
459. In what follows, I largely follow the analysis of BACEVICH, supra note 32.
460. SINGER, CORPORATE WARRIORS, supra note 64, at 184.
461. U.S. DEP'T OF JUSTICE, supra note 380, at 1. In 2007, Congress legalized the warrantless wiretap program. Jim Rutenberg, Wielding the Threat of Terrorism, Bush Outmaneuvers the Democrats, N.Y. TIMES, Aug. 7, 2007, at A14.
462. See David Luban, The War on Terrorism and the End of Human Rights, in THE CONSTITUTION IN WARTIME: BEYOND ALARMISM AND COMPLACENCY 219 (Mark Tushnet ed., 2005).
463. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 649-50 (J. P. Mayer ed., George Lawrence trans., Anchor Books 1969) (1909).