Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2008 On the Commander-In-Chief Power David Luban Georgetown University Law Center,
[email protected] Georgetown Public Law and Legal Theory Research Paper No. 1026302 This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/598 http://ssrn.com/abstract=1026302 81 S. Cal. L. Rev. 477-571 (2008) This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Constitutional Law Commons ON THE COMMANDER IN CHIEF POWER ∗ DAVID LUBAN BRADBURY: Obviously, the Hamdan decision, Senator, does implicitly recognize that we’re in a war, that the President’s war powers were triggered by the attacks on the country, and that [the] law of war paradigm applies. That’s what the whole case was about. LEAHY: Was the President right or was he wrong? BRADBURY: It’s under the law of war that we . LEAHY: Was the President right or was he wrong? BRADBURY: . hold the President is always right, Senator. —exchange between a U.S. Senator and a Justice Department 1 lawyer ∗ University Professor and Professor of Law and Philosophy, Georgetown University. I owe thanks to John Partridge and Sebastian Kaplan-Sears for excellent research assistance; to Greg Reichberg, Bill Mengel, and Tim Sellers for clarifying several points of American, Roman, and military history; to Marty Lederman for innumerable helpful and critical conversations; and to Vicki Jackson, Paul Kahn, Larry Solum, and Amy Sepinwall for helpful comments on an earlier draft.