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The War on Terrorism

Examining the roles of Congress, the President, and the Courts

Friday, January 19, 2007, 1-6 pm

Watch the webcast: Part One | Part Two | Part Three | Part Four

The War on Terrorism has raised basic constitutional questions

Shortly after 9/11, Congress authorized the President to use "all necessary and appropriate force" against the perpetrators. George Bush invoked this law and his independent constitutional power to wage wars in Afghanistan and Iraq, detain suspected "enemy combatants," and try them by military commissions he created. The Supreme Court held in 2004 that detainees have a due process right to an impartial hearing (Hamdi) and in 2006 that the President cannot independently establish military commissions (Hamdan).

Last October, Congress authorized such military tribunals and provided that they will not be bound by international human rights laws and treaties. In November, however, voters gave Democrats control of Congress. This shift will prompt Congress and President Bush to take a fresh look at war-making under the Constitution. To illuminate this process, this Symposium will address the following questions:

  1. Can Congress alone initiate war? If so, does it matter whether Congress declares war, issues a formal resolution, or simply supports a war through funding?
  2. What is the scope of the President's war powers? Does he always need legislative approval before acting? Or can he proceed independently? If so, under what circumstances?
  3. Should federal courts apply ordinary or deferential standards to judicial review of military affairs? Should they treat some, or all, military decisions as "political questions" committed to the elected branches?

Our distinguished panel of public intellectuals will offer a wide range of answers.

Symposium Panelists

Janet Cooper Alexander

Frederick I. Richman Professor of Law, Stanford Law School
Professor Alexander's teaching and scholarly interests include national and international security, federal courts, civil procedure, and complex litigation. She is best known for her seminal articles on procedural design and class actions. Professor Alexander has also been a principal investigator at the Stanford Center on International Conflict and Negotiation. She graduated from UC Berkeley School of Law, clerked for Judge Shirley Hufstedler of the Ninth Circuit and Justice Thurgood Marshall, and later became a partner at Morrison & Foerster.

Akhil Reed Amar

Southmayd Professor of Law and Political Science - Yale University
The Supreme Court has cited Professor Amar more than any other scholar of his generation. He has published over a hundred law review articles and several books, including The Bill of Rights: Creation and Reconstruction (1998) and America's Constitution: A Biography (2005). Each work earned Amar an ABA Silver Gavel Award. He has also served as a coauthor of a leading constitutional law casebook, Processes of Constitutional Decisionmaking. Amar comes to Pepperdine each August as the D and L Straus Distinguished Visiting Professor.

Neal Kumar Katyal

Professor of Law - Georgetown University Law Center
In the landmark Hamdan v. Rumsfeld case, Professor Katyal persuaded the Supreme Court to invalidate the military commissions created by President Bush. An expert in both constitutional and criminal law, Katyal has published articles in virtually every major American law review and newspaper. His other career highlights include clerking for Justice Stephen Breyer and Judge Guido Calabresi, serving as national security advisor in the Justice Department, acting as Vice President Gore's co-counsel in the 2000 election dispute, and winning the 2004 National Law Journal Pro Bono Award for his work with Guantanamo detainees.

Michael Stokes Paulsen

McKnight Presidential Professor of Law and Public Policy, Briggs & Morgan Professor of Law, Associate Dean for Research and Scholarship - University of Minnesota Law School
After graduating from Yale Law School, Professor Paulsen held several public service positions, culminating as an attorneyadvisor in the Justice Department's Office of Legal Counsel. He teaches and writes in the areas of constitutional law, criminal procedure, legal ethics, and law and religion. A prolific and distinguished scholar, Paulsen is especially renowned for his work on constitutional interpretation, presidential authority, and separation of powers.

Eric Posner

Kirklandand Ellis Professor of Law - University of Chicago Law School
After receiving a B.A. and M.A. from Yale and a JD from Harvard, Professor Posner clerked for Judge Stephen Williams of the D.C. Circuit and served as an attorney-advisor in the Department of Justice's Office of Legal Counsel. Posner has published six books and numerous articles that cut across a wide range of subject areas, including constitutional law and international law. His thought-provoking work on the War on Terrorism has culminated in the recent publication of Terror in the Balance: Security, Liberty, and the Courts (Oxford, 2006).

John Yoo

Professor of Law, University of California, Berkeley School of Law (Boalt Hall)
Professor Yoo graduated from Harvard and Yale Law School. He clerked for Judge Laurence Silberman of the D.C. Circuit and Justice Clarence Thomas. Yoo has served as general counsel of the Senate Judiciary Committee and as a specialist in terrorism and national security in the Bush Justice Department's Office of Legal Counsel. His constitutional law scholarship focuses heavily on defending an expansive view of the President's military authority. Yoo most recently authored The Powers of War and Peace (2005) and War by Other Means (2006).

Moderators - Pepperdine University Constitutional Law Faculty

  • Kenneth W. Starr
    Duane and Kelly Roberts Dean and Professor of Law
  • Bernard James
    Professor of Law
  • Douglas W. Kmiec
    Caruso Family Chair in Law and Professor of Constitutional Law
  • James M. McGoldrick, Jr.
    Professor of Law

Symposium coordinator

  • Robert J. Pushaw
    James Wilson Endowed Professor of Law