E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Philip Bobbitt, who to my mind does not enter the lists often enough, has a very insightful review of Jameel Jaffer's book on drone strikes up on the Just Security website. Jaffer is not too happy with Bobbitt's review, and his reply is here. To my mind, Bobbitt makes at least two important points that Jaffer misses. The first is that a judicial or adjudicative model is inadequate to understand the basis and extent of presidential power during an armed conflict (I'm happy to call it a "war," the 9/11 War) authorized by Congress. So as I recommend in my recent article, Bobbitt takes the 9/11 AUMF seriously. My contribution is to argue that the presidential elections held subsequent to 9/11 are constitutionally relevant to assessing the basis of the Obama administration's military operations overseas, including drone strikes. By the way, I am happy to recommend Sai Prakash's article in the same Drake Law Review symposium to which I contributed. Prakash argues for the position, which I agree with, that the 9/11 AUMF justifies the military operation against ISIS.
Bobbitt's second point is that organizations like the ACLU (as well as journalists) have placed far too much emphasis on OLC opinions as the source of law for the executive branch rather than presidential actions. Especially in sensitive areas like national security in which there is ongoing presidential involvement, the president controls the law of the executive branch, not OLC. In understanding that law, we must look first to presidential statements and decisions, not the quasi-judicial statements of OLC. In any case, I highly recommend Bobbitt's review. Posted
1:13 PM
by Stephen Griffin [link]