Law and the Justice of War (4992)
This course will examine some of the jurisprudential and legal issues presented by past wars and the current “war” against terrorism. This will include examination of related case law, legislation, and public policy, as well as ethical, moral and religious dilemmas posed in the development of war law and policy. We will study the relevant Supreme Court opinions that circumscribe the Court’s recognition and restriction of civil liberties in time of war and seek to articulate the balance between the Presidential war powers and civil liberties. We will examine the effect of war on essential civil liberties at each stage of our history including the effect on freedom of speech and press, freedom from arbitrary detention, and racial (Koramatsu) and religious discrimination. The due process rights of the Guantanamo Bay detainees and the pending litigation testing the suspension of habeas corpus (2006 Military Commission Act) will receive particular attention. The course will also survey the positions of faith traditions in the U.S.—Christian, Muslim, and Jewish—as to war and peace, and the role they play in the formation of war-making jurisprudence. Should faith have such a role? In particular we will analyze and rethink the Just War tradition which is the historical root of the Western legal tradition of the law of war. We will also consider other ethical and moral sources we might turn to in developing standards on the legality and conduct of war.
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