The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The new editor in chief of the student-edited National Security Law Journal (published at George Mason University, where I am a professor) has recognized that it was a "mistake" for the journal to publish Professor William Bradford's article, "Trahison des Professeurs: The Critical Law of Armed Conflict Academy as an Islamist Fifth Column," which advances the ridiculous argument that numerous legal scholars critical of the government's policies in the War on Terror can be considered "enemy combatants" who can legitimately be targeted for death by the armed forces and law enforcement agencies.
About the article itself, there's not much I can say that has not already been better said in this commentary by my colleague Jeremy Rabkin, a leading conservative international law scholar (Rabkin's comment has been posted at the NSLJ website):
In the Foreword to this issue of the journal, last year's Editor in Chief does acknowledge that this new issue "will not be without controversy" …The editor then offers the "hope" that "the diverse ideas you read here even if you disagree will prompt you to think and respond." That doesn't remotely address the problem.
When an article proposes to arrest law professors and bomb law schools and nearby TV studios, it's not engaging in "controversy," but slipping into an alternate universe. It's not "discomforting." It is bonkers. The journal could not reasonably have expected readers to "respond"—unless to ask, "Are you out of your minds?"…
The article cites a range of scholars, whose works purportedly exemplify… treasonous activity….
It is outright libel to call such scholars "combatants" in the service of Islamist aggression. The only defense for such accusations is that they are too preposterous for anyone to take seriously. It is the contemporary equivalent of the John Birch Society claiming, in the 1950s, that Secretary of State George Marshall and then President Dwight Eisenhower were Communist agents.
I would add that the problem with the article is not that its argument is outside the bounds of mainstream legal thought, or even that it is nasty and offensive. It is that it makes serious accusations of treason and conspiracy without any meaningful supporting evidence, and then tries to use those charges as justification for targeting civilians.
Perhaps more troubling than the article itself is the fact that the author taught law (perhaps including the law of armed conflict) to future army officers at West Point until he resigned earlier today (possibly as a result of media reports indicating that he had misrepresented his academic and military record). West Point cadets are among the best students in the world, and they might well have been appropriately skeptical if Bradford told them it is legally and morally acceptable for soldiers to target civilian academics whose only offense is publishing "treasonous" scholarship. Still, West Point should be able to find better-qualified professors to teach such an important subject.
This incident exemplifies in extreme form one of the main problems with student-edited law reviews, which are still the most common type of academic journal in legal academia: student editors sometimes lack the knowledge needed to assess the quality of the articles submitted to them. In this case, the editors may have been misled by the article's superficially extensive scholarly apparatus (including hundreds of detailed footnotes), and even more so by the author's seemingly impressive credentials as a West Point professor (at the time the article was published, he listed himself as a professor at the prestigious National Defense University, even though it turns out that he was never actually a member of the faculty there).
In recent years, many student-edited journals, including some at George Mason, have begun to consult faculty experts on submissions that may be be close calls. While student editors still make the final decision on publication, they can consider the faculty members' comments as part of the decision-making process. Faculty reviewers can, at the very least, help identify articles that fail to meet minimum standards of academic quality, as this one does.
In his statement repudiating the article, the current Editor-in-Chief (who is not the same one the one who approved its publication in the first place) states that "we are re-examining our selection process to ensure that we publish high quality scholarly articles." Perhaps the above suggestion is one reform he should consider.
In criticizing student-edited journals, I do not mean to suggest that peer-review journals are perfect. Far from it. They have significant issues of their own. Just recently, the prestigious peer review journal Science retracted a high-profile article that turned out to be based on falsified data. Most peer-review journals have little ability to detect academic fraud. In some cases, the peer review process is vulnerable to favoritism, or to efforts to keep out scholarship that challenges the conventional wisdom in the field.
There is no perfect way to screen scholarship for publication. But we should do what we can to minimize the weaknesses of both student-edited journals and peer-reviewed ones.
NOTE: As indicated above, I am a professor at the George Mason University School of Law, which publishes the student-edited National Security Law Journal. Although I have on occasion advised other student-edited journals at George Mason when they ask for my views on article submissions, I have not done so for the NSLJ, and was not aware of this article until after its publication led to extensive controversy.