Unique Course Highlights Theory Behind War
One of the earliest and most enduring clichés to emerge from 9/11 was the idea that the terror attacks on New York City and Washington, D.C., “changed everything.” During the months and years that followed, Bush administration officials repeated variants of this idea, in some cases displaying a contempt for many assumptions, laws, and norms that had long guided and constrained U.S. conduct in war. Those captured in what the administration proclaimed a “new kind of war” were charged not in civilian courts, but by closed military tribunals. In that setting, hearsay and evidence acquired under coercion and torture were put before tribunal juries but not made available to defendants, who, instead of being given fixed sentences, were detained indefinitely at the Guantanamo Bay Naval Base in Cuba. Perhaps the best-known executive monument to this dramatic turn is the January 2002 memo in which former U.S. Attorney General Alberto Gonzales (then a counselor to President George W. Bush) heralded a “new paradigm [that] renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.”
In a matter of weeks, the policies and perspectives that defined this “new paradigm” became notorious around the world. The rendition of suspects, reports of torture, and the prison at Guantanamo became subjects of heated national and international debate over their morality, legality, and effectiveness. The bright-orange jumpsuit worn by Gitmo detainees was soon understood as global shorthand for this debate over departures from U.S. legal tradition, a universal emblem for indefinite detention without due process. This debate was, not surprisingly, most heated and most sophisticated at this country’s schools of law, where leading legal minds wrestled with the implications of the changes in U.S. policy. At Columbia Law School, the orange jumpsuit became a symbolic focal point for Jurisprudence of War, an advanced seminar that Cardozo Professor of Jurisprudence George P. Fletcher has been teaching at the Law School since 2003. Many of the theoretical issues and historical questions Fletcher discusses with students during his course address policies and debates evoked by the Gitmo prisoner garb. It is a long list, including the nature of war and patriotism, the power of the presidency, the constitutionality of military tribunals and drone warfare, and the relevance of the U.S. Constitution to activities undertaken abroad, just to name a few.
“Gitmo is so iconic, I can wear that orange anywhere in the world, and people will know that I am protesting U.S. policies,” Fletcher, a leader in the field of criminal jurisprudence and author of the 1978 work Rethinking Criminal Law, said during an interview in his office. “The course takes a comparative perspective and considers how other countries facing terrorist threats have responded in shaping the law of detention and of criminal liability.”
It does not take students long to understand that Fletcher is a fierce, thorough, and principled opponent of the shift in U.S. detention policy. But he is more than just another critical observer. In 2006, Fletcher entered the fray in the fight to undermine the shaky legal architecture on which Guantanamo rests, such as the administration’s claim that conspiracy and association qualify suspects for the status of “enemy combatants” who can be detained as long as the government sees fit. In that year, Fletcher submitted an amicus brief in support of a Gitmo detainee named Salim Ahmed Hamdan. One of the first detainees to have his case heard before the Supreme Court, Hamdan had served as a chauffeur for Osama bin Laden before being captured in Afghanistan in 2001, turned over to U.S. troops, and charged with conspiracy. Fletcher’s brief, employing the author’s mastery of the theory and practice of U.S. and comparative criminal law, put forward the case that, for a variety of reasons, a federal criminal court is the correct domain for hearing charges of conspiracy.
“I argued that conspiracy was not part of the law of war, and that these [military] commissions only have jurisdiction over the law of war,” says Fletcher. “Hamdan [v. Rumsfeld] was an important case, and it was very exciting to play a role in it.”
The Supreme Court, in a decision written by Justice John Paul Stevens, sided with Fletcher and Hamdan’s lawyers. Hamdan v. Rumsfeld was the greatest legal setback for the Bush administration’s post-9/11 policies of rendition, detention, and conviction without due process. Legal scholars and analysts quickly recognized the impact of holding. For instance, while testifying before the Senate Judiciary Committee a few weeks after the decision, recent Columbia Law School Visiting Professor Harold Hongju Koh referred to Hamdan as “perhaps the most significant decision regarding executive power since the Court’s landmark 1952 decision in the steel seizure case.” Former head of the Office of Legal Counsel Walter Dellinger went one step further in writing about the case: He referred to Hamdan as “the most important decision on presidential power and the rule of law ever.”
Among those who took notice of Fletcher’s Hamdan amicus brief was attorney and current Columbia Law School lecturer Michel Paradis, a veteran staff lawyer at the Department of Defense who co-teaches Jurisprudence of War. At the time of the Hamdan ruling, Paradis was completing a doctorate in computational linguistics at the University of Oxford and doing some pro bono litigation work. “When I read George’s brief, I was very impressed and immediately reached out to him,” says Paradis. “Our correspondence developed into a friendship, and eventually a professional partnership.”
In 2007, Paradis received an email from a Pentagon lawyer representing a Gitmo prisoner and Australian national named David Hicks. The Marine Corps major asked Paradis if he would like to help with the trial. This led to another Gitmo case, which was followed by another. Before the end of the year, Paradis had accepted a job as staff attorney with the Pentagon representing Gitmo detainees. “When I went down to Guantanamo for the trial, I had a visceral appreciation for the importance of the work,” says Paradis. “Gitmo was this remote Devil’s Island that seemed to represent everything that was the worst about the Bush administration. Many of the prisoners were in solitary.”
Among Paradis’ clients was a Yemeni man named Ali al-Bahlul, who, like Hamdan, faced conspiracy charges before a military tribunal for his alleged work serving as a personal assistant and public relations secretary for Osama bin Laden. In the summer of 2015, Paradis won al-Bahlul’s case when the United States Court of Appeals for the District of Columbia Circuit vacated his conviction, a spectacle that felt a little like déjà vu for both Fletcher and Paradis.
“Following the Hamdan decision, Congress fought back against its implications by trying to redefine the crime of conspiracy,” says Fletcher. “In the al-Bahlul [v. United States] decision, the D.C. Circuit rejected these efforts. Al-Bahlul is a very long and complicated opinion, [and] will have to be a major part of the class. It is very exciting for the students to have the lead lawyer who won the case as their co-teacher.”
As co-teachers, Fletcher and Paradis form a unique and valuable duo that combines theory and practice, where philosophical discussions can be rounded out by insights into how the bureaucratic and professional realities of government often influence the making and practice of policy at the highest levels.
“George has been teaching the class for a number of years and looks at it as a philosophical and legal history problem, as opposed to me, who looks at it more from a litigator’s perspective,” says Paradis. But, adds Fletcher, the class also allows Paradis to stretch his philosophical legs: “My presence legitimates Michel to be more philosophical, rather than just tell war stories.”
The end result is a course that attracts students with diverse backgrounds—from J.D. candidates interested in social justice to former military lawyers to students from other Columbia University schools.
“It’s unlike any Law School class I’ve taken,” says Anya Crosby Olsen ’17, who worked in the Offices of Population and Reproductive Health and HIV/AIDS at USAID’s Bureau for Global Health before attending the Law School. Olsen was initially interested in Jurisprudence of War because she wanted to learn more about the theory and philosophy behind laws focused on armed conflict. So far this semester, she says the class has delved into topics such as linguistics and war as a romantic concept. “There are a lot of rhetorical questions,” Olsen adds. “But when you’re making policy decisions, you need to be guided by those rhetorical questions. You need to take [them] and create concrete actions.”
Nick Mull ’17 LL.M. joined Fletcher’s class for different reasons. A Marine Corps officer transitioning into the world of academia, he says the course gives him a greater breadth of perspectives on issues he has dealt with his entire military career. In turn, Mull and his classmates from armed service backgrounds give their civilian counterparts firsthand insight into the military side of their debates. “We’re not discussing actual laws of war,” he says, “but greater concepts—why people go to war and why we should hold people accountable.”
Jurisprudence of War builds on Fletcher’s foundational expertise in criminal law. It is a foundation without peer in the field. His 1978 work Rethinking Criminal Law has been the subject of symposia and is still regarded as one of the most important books on the subject published in the past century. Fletcher—who also teaches a course on the moral and legal implications of the biblical texts and ancient religious codes—has proven a valuable ally to those who believe established criminal law, rather than loud and obfuscating claims relating to national security, should guide the handling of those captured on the often-murky battlefields of the global “war on terror” and charged with committing, aiding, or abetting terrorism.
The content of the course has changed some since it was first offered to Columbia Law School students in the early aughts, but not nearly as much as Fletcher would like. “Now the course includes decisions like Hamdan, but it is largely the same, because many of the post-9/11 policies and their consequences are still with us,” says Fletcher. “Between 2003 and now, things have been relatively stable, without much action, even though I constantly anticipate it. That’s why the al-Bahlul decision is such a significant case. It’s a good sign that the pushback has reached the circuit courts.”
Paradis, for his part, would also prefer that the legal victories against Bush-era policies were broader and occurring at a faster pace. But he is guardedly optimistic that the al-Bahlul decision may herald a turning point, if not quite a tipping point. “It’s one thing when the Supreme Court says something, and another when the lower courts start saying the same thing,” he notes. “I think the judges are regaining a lot of confidence. The Supreme Court position [on some of the detention policies and practices] is filtering out to the rest of the courts.”
But Paradis stresses that current progress is limited, and he works for the day the Supreme Court agrees to take another Guantanamo case. “That is the only way the government, whomever the next president is, will respect due process and the rule of law in Guantanamo,” he says.
While Jurisprudence of War centers on the present and focuses primarily on recent history, it also roves through the centuries. A previous class began with a viewing of Kenneth Branagh performing the Saint Crispin’s Day speech in Shakespeare’s Henry V (“We happy few, we band of brothers . . . ”) as a launching point for a wide-ranging discussion of romantic versus liberal conceptions of war through the ages. (Fletcher is the author of a book on the subject.) Students received a syllabus that included recent court decisions, speeches by high-ranking officials, and scholarly texts and documents dating to the 14th century. Over the course of the semester, they studied criminal codes from around the world, international conventions, various war tribunals throughout history, and theories about the proper scope of executive power. The professors say a single class discussion typically covers an enormous amount of intellectual ground, with, for instance, a point about theories of war guilt potentially leading to debates about torture, drones, and other subjects ripped from the headlines. (The course is also leavened with the occasional YouTube clip dramatizing a question or issue; along with the Henry V speech, Fletcher played footage of George C. Scott delivering General George S. Patton’s famous 1944 speech to the Third Army.)
“The classes deal with things that you can find in the newspaper on any given day,” says Paradis. “As lawyers, we can think we’re immune from these issues—U.S. use of force, our role in the world—in terms of our day-to-day practice. But while these are intensively political and personal issues, they come down often to questions of law. In terms of being a good citizen and the responsibility that comes from being a member of the bar, I think it’s important to have a command of these issues.”
There are also sound professional reasons to engage with the issues raised by Jurisprudence of War, adds Paradis.
“Much of law is about harmonizing legal systems,” he says. “Whether you’re doing corporate law, tax law, or human rights, this course helps develop that rounder skillset that you do need just to be a good lawyer.”