by Michael Dorf
A recent article in The Guardian called my attention to a grotesque law review article that appeared in the National Security Law Journal (NSLJ), a student-edited journal at George Mason University School of Law. The article by William Bradford, an assistant professor in the Department of Law at West Point (and formerly a law faculty member at the University of Indiana), is a 180-page McCarthyite screed against foreign and domestic enemies--including civil rights attorneys, the U.S. Supreme Court, the Obama Administration, and especially the legal academy--for their ostensible support for Islamist enemies in the long war in which the U.S. is engaged.
I use the term "McCarthyite" literally. Although much of Bradford's article offers a reading of the law of war at odds with the reading of those whom he criticizes--which is fair enough--his tone is far from academic. He labels those with whom he disagrees cowards, anti-Americans, and fifth-columnists. More directly to Bradford's McCarthyism, he urges that scholars who cast doubt on the legality of U.S. detention, targeting, and other military practices be required to take loyalty oaths, stripped of tenure and lose their jobs, called before "a renewed version of the House Un-American Activities Committee," prosecuted for giving material support for terrorism and treason, and subject to military treatment as unlawful enemy combatants.
That last proposal entails the use of military force, presumably including bombing. Bradford writes: "Shocking and extreme as this option might seem, [these] scholars, and the law schools that employ them, are--at least in theory--targetable so long as attacks are proportional, distinguish noncombatants from combatants, employ nonprohibited weapons, and contribute to the defeat of Islamism." On second thought, to label Bradford's article "McCarthyite" is unfair to the late Senator Joseph McCarthy, who never proposed anything like bombing U.S. universities.
Bradford's article is absurd and, to their credit, the student-editors of NSLJ published a response by Jeremy Rabkin, a respected (former longtime Cornell, now George Mason) conservative scholar. Rabkin rightly pulls no punches in describing Bradford's article as deranged. Rabkin concludes his response by urging the NSLJ editors to acknowledge that they made a mistake in publishing the Bradford article and then to implement steps to prevent further lapses in the future.
The NSLJ did indeed acknowledge that publishing the Bradford article was a mistake and promised a review of its article selection processes. I could quibble with the characterization of the selection of the article as merely a mistake. It was a mistake in the way that politicians issuing non-apology apologies say that "mistakes were made" or that politicians and celebrities excuse their own deliberately bad, even criminal, conduct as a mistake. But this would be a quibble. Professor Rabkin asked for the acknowledgment of a mistake and so the NSLJ editors obliged in those terms. Moreover, it is clear that the current editorial board did not decide to publish the Bradford article. Characterizing their predecessors' grossly incompetent judgment as merely mistaken is perhaps a way of avoiding piling on.
The NSLJ acknowledgment of its mistake goes on: "We cannot 'unpublish' [the Bradford article], of course, but we can and do acknowledge that the article was not presentable for publication when we published it, and that we therefore repudiate it with sincere apologies to our readers." And yet the NSLJ did unpublish the article, after a fashion. On the webpage that lists the contents of Volume 3, Issue 2, links are provided for all of the articles and essays except for the Bradford article. At the same time, clicking on the link on that same page to download the entire issue produces a file that does contain the Bradford article. It can also be found in print and on subscription databases like Westlaw, Lexis, and HeinOnline.
But I recommend that interested readers get their copy from SSRN, where Bradford has (one has to assume inadvertently) uploaded a near-final draft that includes marginal comments back and forth with the student-editors. They are revealing in at least two respects.
First, it is stunning to see the student-editors focusing on minutiae such as whether a source supports a statistical claim that Bradford makes, while almost completely overlooking the outrageous substance of his article. I have sometimes noted some of the advantages of student-edited journals over peer reviewed journals (e.g., point 3 here), but the tendency to miss the forest for the trees is a clear disadvantage, displayed disastrously in the editing of the Bradford article.
Second, in the final printed version, Bradford only says by implication that the U.S. military should be able to kill law professors with views he believes to be in error. The final version says that these scholars "can be targeted at any time and place and captured and detained until termination of hostilities." The rest of the paragraph makes clear that such targeting includes "attacks" with "nonprohibited weapons," but a careless reader might miss the implication that Bradford is advocating killing dissident legal scholars. His original draft was unambiguous. There he apparently wrote that such scholars "can be targeted and killed at any time and place" (emphasis added). A student-editor asked in the margin whether it was "okay to delete 'killed'?" In a rare display of moderation, apparently Bradford was content to make the point only by strong implication. But the draft underscores his clear intent.