AMERICAN JUSTICE IN WARTIME
POS 380
Dr Richard J.
Maiman
Department of
Political Science
126 Bedford St,
Portland Campus
780-4191 maiman@usm.maine.edu
Office Hours:
Thursday, 1-4 pm
"There is no reason to think that future wartime presidents will act
differently from Lincoln, Wilson, or Roosevelt, or that future Justices of the
Supreme Court will decide questions differently from their predecessors." -
William Rehnquist, All the Laws But One: Civil Liberties During Wartime
This course examines the tensions and conflicts between government authority
and individual freedom in American during times of war. It examines the dynamic
interactions of the three branches of the national government with particular
emphasis on the relationship between the judiciary and the so-called
"political" branches. PART I (approximately the first half) of the
course will survey the early national period, the Civil War, World Wars I and
II, the Cold War, and the Vietnam War. PART II addresses in detail the current
War on Terror, with an eye toward identifying similarities and differences
between historical patterns and contemporary political practices.
COURSE OBLIGATIONS
There will be two take-home examinations in this course, each consisting of
two essay questions. The midterm exam will be worth 15 percent of the course
grade, and the final exam -- which will cover the entire course -- will count 35
percent of the grade. You will write a 4,500-5,000-word research paper, worth 45
percent of the course grade. The last 5 percent of the final grade will be based
on class participation. Attendance is required, and roll will be taken twice
each week, both before and after the break. Perfect attendance will earn a two
point bonus added to the final grade, and those with no more than two absences
will receive a one point bonus. One point will be deducted from the final grade
for each absence beyond six. No distinction will be made between
"excused" and "unexcused" absences.
You will need to purchase only one book for this course: David Cole and James
X. Dempsey's Terrorism and the Constitution. Some readings, designated (ER) on
the syllabus, will be available on Electronic Reserve at the USM Library. Other
course readings can be accessed directly online, via the URLs in the syllabus.
The easiest way to obtain these online materials is to access this syllabus
online at http://www.usm.maine.edu/pos/americanjustice.html. From time to time
reading materials will also be distributed in class.
The course readings are a mixture of primary and secondary source materials.
The primary materials will provide you with a first-hand look at executive,
legislative, and judicial policy decisions. These are supplemented by
commentaries on the government's policies, both supportive and critical. Because
much the PART II material is so current, additional readings will be added as
the course progresses.
IMPORTANT DATES
March 16: Midterm
Exam Distributed
March 30: Midterm
Exam Due
April 6: Research
Paper Topic and Bibliography Due
April 15: Last Day
to Submit Term Paper Draft for Feedback
April 27: Term
Paper Due
May 4: Final Exam
Distributed
May 14: Final Exam
Due
PART I
January 20: Introduction
| January 27: The
XYZ Affair |
| President John Adams's message to Congress on
the XYZ Affair (May 16, 1797) |
 |
| An Act Respecting Aliens (1798) |
| Sedition Act (1798) |
| Virginia Resolution (1798) |
| Kentucky Resolution (1799) |
| Leonard Levy, "Freedom in Turmoil: The
Sedition Act Era" (ER) |
|
|
| February 3: The
Civil War |
| Proclamation Suspending the Writ of Habeas
Corpus (September 24, 1862) |
 |
| President Lincoln's July 4, 1861 Message to
Congress defending his suspension of the writ of habeas corpus (see
especially p. 18) |
| Ex parte Merryman (1861) |
| Ex
parte Milligan 24 Wall. (71 US) 2 (1866) |
| William H. Rehnquist (Chief Justice of the
United States), "Civil Liberty and the Civil War" |
|
|
|
February 10: World War I |
| Espionage Act (1917) |
 |
| Espionage (Sedition) Act, Sec. 3 (1918) |
| Voices of dissent during World War I |
| Schenck v. United States
249 US 47 (1919) |
| Gitlow v. New York
268 US 652 (1925) |
|
|
|
February 24: World War II |
| Executive Order 9066: Japanese Relocation
Order (February 19, 1942) |
 |
| Korematsu v. United States 323 U.S. 214 (1944) |
| Ken Masugi, "Revisiting the American
Japanese Relocation of World War II" |
| Proclamation 2061, "A Proclamation
Denying Certain Enemies Access to the Courts" (July 2, 1942) |
| Lloyd Cutler, "What I Saw At a Military
Tribunal," Time (November 19, 2001) |
| Ex parte Quirin 317 US 1 (1942) |
|
|
| March 2: The Cold War |
|
| Dennis v. United States 341 US 494 (1951) |
 |
| Scales v. United States 367 US 203 (1961) (see
especially Part II, and the Black and Douglas dissents) |
| Final Report of the Select Committee to Study
Governmental Operations with Respect to Intelligence Activities of the
United States Senate, 94th Congress, 2nd Session, 1976 (Introduction and
Summary) |
|
|
| March 9: The
Vietnam War |
| United States v. O'Brien 391 U.S. 367 (1968) |
 |
| Jessica Mitford, "The Indictment"
(ER) |
| Final Report of the Select Committee to Study
Governmental Operations with Respect to Intelligence Activities of the
United States Senate, 94th Congress, 2nd Session, 1976 ("The Huston
Plan") |
|
|
PART II |
|
|
|
The War on Terror |
|
|
|
March 16: Military and Other Tribunals 1 |
| United States Senate Joint Resolution 23
(September 18, 2001) |
 |
| President George W. Bush's statement upon
signing Joint Resolution 23 (September 18, 2001) |
| President George W. Bush's Executive Order of
November 13, 2001 |
| 1971 Non-Detention Act
(18 U.S. Code, Ch. 301,
Sec. 4001) |
| Testimony of former Attorney General Griffin
Bell on President Bush's Military Tribunals order |
| Kenneth Roth, The Law of War in the War on
Terror" |
|
|
|
March 30: Military and Other Tribunals 2 |
| TBA: Materials on the Padilla case |
|
| TBA: Materials on the Hamdi case |
|
| TBA: Materials on the Guantanamo Detainees
case |
|
| Stephen Breyer (Associate Justice of the
United States Supreme Court), "Liberty, Security, and the
Courts," Speech to the Association of the Bar of the City of New
York (April 14, 2003) |
|
|
|
April 6: Military and Other Tribunals 3 |
| Debate on President Bush's Military Tribunals
order, PBS Newsnight (November 27, 2001) |
|
| Other Reading TBA |
|
|
|
|
April 13: Other Judicial/Legal Issues |
| David Cole and James X. Dempsey, Terrorism and
the Constitution, Ch 1-7 |
|
| Other Reading TBA |
|
|
|
| April 20: The
USA Patriot Act 1 |
| Ian Mylchreest, "Mr Ashcroft, Meet Mr.
Palmer" |
|
| David Cole and James X. Dempsey, Terrorism and
the Constitution, Ch 8-12 |
|
| Senator Patrick Leahy on USA Patriot Act
(Caution: Speech is only the first part of
a 265 page document; print with care) |
|
|
| April 27: The
USA Patriot Act 2 |
| David Cole, "The Patriot Act's Big
Brother" The Nation (March 17, 2003) |
|
| Al Gore, "Freedom and Security,"
Remarks to Moveon.org (November 9, 2003) |
|
| Reading on SAFE Act TBA |
|
|
|
| May 4: The USA
Patriot Act 3 |
| Reading TBA |
|
|
|