>> good evening i am the director of the yale law library and i'm here to welcome you to the book talk series. i also want to thank the federalist society for cosponsoring tonight's top. it features logan beirne the author of the new book of the book "blood of tyrants" george washington and the forging of the presidency. this began as a paper while a law student it was written under the supervision of william s. courage. after working two years in the law firm logan returned to the yale law school in 2010 as a scholar and began to turn the paper into the

book that you see tonight appropriately we have professor estrich with us to comment on the book. he is a highly distinguished member of the yale law school factory and covering of wide range of legal topics and of previous book talk series. according to recently published ready the professor is one of the most known legal scholars in the universe just one or two others have been cited more than him. that was probably of mistakes. [laughter] he is dynamic and innovative teacher and wonderful for young scholars like logan. so now i will turn it over. >> did you very much.

of with like to add that he is fitting for this talk because he is a descendant of george s. courage the godfather of our nation with george washington's mother was just 14 george estrich to a kid in so named her firstborn son after him. so thank you for coming today. [laughter] >> wait a minute. >> logan is quite right but he is also the descendant of distinguished forebears'. that we have a relationship to george washington. as most of you know, he participated in the french indian war that was probably his first real military experience. one of the officers serving under him the most decorated officer was the and courage was the lineal ancestor of

logan beirne on his mother's side and after an important battle that george washington actually one. [laughter] he turned over the sash of the general to his trusted and decorated officer dan ritchie and we have that sash here today which we will award to logan beirne. [applause] [laughter] civic that makes him an appropriate author spent if they may have carried his body in it. i may take it off. it is funny because we go back a long way to colonial virginia and talking about politics is started a revolution so. [laughter]

yale law school is a hotbed of rest. >> history and heritage comes into this book quite a bit mind being revolutionary but also i am fascinated by the fact that each of us has a rich family heritage and it is important we remember that and learn from it. and it is on our national collective heritage and what we might learn from the founders when they were forging what it meant to be the american commander in chief during the revolutionary war. so this book started swaybacked when i was young my father would take is to the re-enactment of the battle of lexington every year without fail. it would be freezing cold morning in april and watching the actors put on

the battle. my favorite part was the breakfast afterwards we will go to a restaurant it was hokey the waiters and waitresses would dress up in costumes and act the role of different patriots. my father having a dry sense of humor would torture the man dressed as washington to try to make and break character and eventually every year he would laugh eventually. so fast forward a decade later i am sitting in and professors constitutional law class and you described article touse section ii article commander in chief klaus that just says they should be commander-in-chief however presidents from history have sounded this

power for various means whether prisoner of torture, military commissions, congress, all sorts of powers has been read into this clause. so you say too bad you cannot ask founders what they had in mind instantly thought of that waiter and why don't we just asked him? [laughter] i did the next best thing and went to the library which resettled me go through the tons of primary sources in the collection that we have here of documents and diaries and clippings to get a thorough look what the founders were saying and what they believed to understand the american commander in chief could mean. sure enough i turned to my

first draft and remember what you said? >> it was george versus george versus georgia was the title. i think it was washington, a room at three and george w. bush. >> that's right. i was comparing the three. the u.s. for more. here is more eventually it evolves into the book we have coming out in the next couple of weeks. what really struck me initially was a quote from washington where he said the foundation of our empire was laid not during a gloomy age of ignorance and superstition but when the rights of mankind were better understood and more completely defined in a suspicious period the united states came into existence

as a nation and citizens should not be completely free the fall be entirely their own. i saw that as a personal challenge to each and every one of us to learn about this to understand what was happening to see when the founders got together after the revolutionary war to write the constitution, who was french and center of the president of the constitutional convention was george washington the commander in chief who led them to the struggle to define what it meant to be the commander in general and what they were creating with the constitution everyone knew that george washington would be the first president and when it came time to elect him he took every single''.

as i was researching i saw a fascinating and juicy and scandalous stories some of which saddam like there were headlines from today. with torture, and military commissions, the mastermind of 9/11 and what rights he deserves a said the same thing back then. even congress was meddling in the president's war powers. that was of great -- big discussion during the revolutionary war. i like to start off and get into the other stories but one in particular because it helps to establish a reoccurring principle i found time and time again while writing this, then divide between the president and the commander in chief's

power over foreign nationals and with strong foreign forces vs. the power over american citizens and what power does he have to defend us from one another? the story begins upstate new york and right now when you think of west point rethink well manicured lawns, the military e. lee to to, monumental but in 1780 it was a fledgling fort basically the british were interested to capture the entire hudson river because they wanted to cut off the rebellious new england states from the rest of the nation that would

effectively end the revolution if they could do so. so what the americans did not having a navy we constructed a land-based defense. president arnold knew how viable this was. said he concocted of planned to sell it for approximately $26 million today. where it gets most interesting everybody knows about benedick journal but if you looked at his co-conspirators and the loyalist smith. when it came time for benedict arnold to betray his country, he met with

john on tray to formulate the plan of attack to give the plants of west point to let him know where he might best attack from and when and they met on the side of the hudson downriver from west point in a wooded area and they were bickering the whole night how to do things. you can see how arnold was not an enviable fellow. but then the sun comes up while they're still talking and andre ship is fired upon when the patriots see it said he is trapped so arnold says okay. let's go back to smith's

house and we will figure out another way to get you to safety in new york city. they go back to the house and arnold says put on smith's jacket this will disguise use of people thank you are an american. do me a favor and ride back down to new york city to make sure he is safe. everything seems great they come to tarrytown and smith by this point* is pretty tired he was up the whole night and he wants to sleep so he turns around and sure enough 6 miles later andre is jumped by militiamen and they for a scam and strip search and find the plans to west point in his boot. quickly will whole plan

starts to unravel and arnold gets wind of this and he escapes then washington find out and he quickly sensed his men to get joshua. what is striking is washington has said his disposal john andre and john smith in the exact same plot and both have damning evidence against them and he says to smith, i have enough evidence to hang space your tree. but he doesn't instead he provides them with a court martial with the military trial dating back to the 13th century in which there are some safeguards

with the elements of due process that the accused has a fighting chance to defend themselves and the panel is charged with deciding if this man is guilty of war not. after four weeks of trial smith has damning evidence to have these witnesses that are testifying to see the familiarity of the monterey and smith and andre plus the coat to interpret an officer and at the end of the trial they realize because he is an american he has a high burden of proof and we need to prove that he knew what he was doing was wrong.

and they couldn't. he was acquitted. people were shocked they were so shocked the authorities took them back to prison on other charges. he was a slippery character and escapes dressed as a woman making it back to new york but it was far different instead washington ignored on the books in a maze of this sort should be tried by court martial but instead he creates a military commission sometimes that mears said court martial but does not have to. there is no right of due process no whim of the commander to determine whatever rules he once it is

seen as a quick and dirty way to punish the accused not even looking to see if he is guilty but what punishment does he deserve? so andre -- andre has a two day trial in which they have evidence against him and he doesn't even have a chance to confront his accusers and he is hanged. washington fell four andre because he realized the real enemy was arnold and this young man was a likable character was caught in a mess that the same time washington felt strongly his

job was to defend a nation to send a strong signal that those who crossed him would be punished severely. so to talk about the title of the book is called "blood of tyrants" and i gave it that title after the famous jefferson nine dead tree of liberty must from time to time with the blood of patriots which i find startling if you think about it. i think the founding fathers and the founding generation sought to create a government that we have now and still use to spare us of the bloodshed that they endured to have a democratic republic where the people were protected so they want

to give the presidency the of power protection from the tyrants but not so much to become a tyrant himself. now i hope we can have a few more stories. >> now let me say a few words. following the presentation. i wrote the blurb for the brook it is quite a page turner. it is about george washington and it is an excellent page turner but the reason i supervised the paper and that project was to think about the commander in chief clause has been a focal constitutional argument for it a lot of important cases. that is one of truman's legal justification relying on the opinion of jackson that was on the court with

fdr for the proposition that a good commander in chief laws gave some authority to confiscate property on american soil of might revolution so we have seen it long ago and we continue to see it with the war on tear and most recently with the debates of president obama continued the engagement of the libyan hostility. with the war powers resolution that the law school thinks is constitutional but in my class they say it is not constitutional with all applications. and apparently the obamacare administration felt it was unconstitutional for congress to provide too many limits on the president's power to commit hostility against libya.

where those are we don't know. the commander in chief clause is a very important constitutional provision. and logan's project, i think is the first one to give us legal purchase on what might have been the original meaning of the commander in chief clause when drafted in philadelphia. i think the only one they know is george washington they certainly did not have george lomax three. they can't even the governor's the head of the militia that was not there model but if they did it was george washington and one of the many things logan's book does this get an idea not just the fact that washington was universally acclaimed and admired but

the reason why. he was not a successful general at any point* in his career. he was not inattention and grabber. but notwithstanding he became a universally admired figure and was a model for the commander in chief clause. i think it is extraordinarily relevant with a constitutional matter to think about the original meaning or the ongoing meaning of the commander in chief clause to know something about the experience that actually produced this clause then as a buddy expected george washington was the first president and commander in chief under article to section two of the constitution. you have to read the book to get the full flavor that logan has given you with this wonderful story of the

court martial and relic -- and the commission here are three themes -- seems that occur in the book and this does have a bearing 51 to talk about issues of torture or commissions which did have parallels during the revolution when washington was commander in chief and did take liberties what we would consider torture some enemy soldiers that had fallen into his hands and some locations did deploy military commissions him to execute spies and others. that is interesting but there are three broader lessons that occur throughout the book but the one that struck me the most that remains relevant today

there was an operative congress of his tenure and i was struck at how utterly respectful washington was said the instructions that he got. this was someone who was often an aggressive not bashful about the power he had been given the yen also followed the approach he was very interested in the views of the continental congress and was respectful when they pass directives and he generally followed them. this book is a wonderful example of what the republican theory such as

the revolution itself what that might mean for the commander in chief. there is a certain degree of humility that washington displayed as commander in chief toward the directives of the continental congress. there is also an extraordinary amount of humility washington and displayed. even when he would be delegated discretion by the continental congress for that plunder this is what armies did. not so much the continental army but please correct me

would execute his own people for engaging in plunder contrary to his destruction taking food and property, etc., etc.. not only where he was authorized by the continental congress to take the property and did not but in deference to what he considered what the law of war should be general washington plays his hand. that is very remarkable and the first remarkable thing about this account which i think helps us to understand the regional meeting of the commander in chief clause innocence going forward. the second point* is if your

the commander in chief washington provides the first followed by subsequent examples of the inherent dynamism that comes with being the commander in chief. in other words, he could have directives from the continental congress were in agreement from the part of washington, but the conditions of the battlefield and strategy in the ongoing evolution met that george washington had improvised quite a lot so even that basal agent was a highly dynamic interpreter of the discretion as well as

the restriction from the continental congress sometimes he would refuse to exercise discretion based on what he thought was appropriate and needed for the water larger strategic and military goals. in many things that logan's book does is shows you the many the key parts of the ship that was our fighting force for the revolution and every 50 pages of the his book we are about to lose the entire shebang. [laughter] but it is a very interesting take on the revolution and one of the things washington and did is he responded brilliantly to terrible circumstances.

i think that is an example of the dynamic of the and trepidation. -- interpretation. the third point* it is remarkable that i never thought about of the american revolution is something senator mccain would appreciate. one of the leading and most constructive voices on the whole tortured debate and i think senator mccain has expertise with the extremely celebrated career in the military and probably in violation of the laws of war has a very capacious understanding of what should be legally and morally imposed on the president.

but as logan sets forth washington did direct the torture on occasion of enemy soldiers who had been captured but what i thought was interesting is how rarely this occurred and it tended to be tied into the notion of reciprocity. it is interesting to see they founded so heavily in the revolution but general washington had reports that the british were mistreated with the course of it but hearing of mistreatment of american prisoners he would make a show of a charade to

visit the same circumstances of the prisoners that we have. there was a bargaining that went on in the revolution between washington and the british side how prisoners of war should be treated. to give us an excellent insight the way in which on the ground level it is not just directives by congress or battlefield decisions made by commanders but also of the dynamics of treatment and reciprocal principle because the british followed to some extent as well. by the way that would be

another great books to write about the revolution from the british point* of view. the brits are the fall guys throughout the entire book. [laughter] no matter how bedraggled the forces were general is literally whoring around in new york city while "washington post" together. general cornwallis over confidence in the south cut him down. [laughter] the brits are the fall guy. but this is the federalist society. [laughter] is an auditory branch?

i think and i would supervise this. so to look at the revolution from the british point* of view of rain not so sure it is a great thing that to win the revolution with not for great britain we would have ended slavery about 50 years earlier. that is how canada got free about the same time without shedding innocent lives and without drama. so i am a tory and there is that point* of view to be written in there are officers shaking there head. [laughter] and that would be used --

useful but that is the slight diversion with the normative implications that i hope stimulates more of a conversation about the early practice to inform our understanding of commander in chief plus with the larger separation of powers to be. professor? >> we know that we did was concerned you have to be simulating an integrating the south and i am wondering what was going on during the american revolution and if washington was motivated in his attitude about justice for the troops in the midst

even if washington and prevails in the revolutionary succeeded. >> the revolutionary war is a civil war. about 40 percent of the population of the patriots they were in different and then the remaining 20% were loyalists. what is fascinating the way washington approached it that is still american citizens so if they broke the law that the majority created they would be punished but they were still americans even though they didn't want then they were according to washington.

and soldiers would be starving in they would go to their homes and ransack them. washington during -- doing a thorough investigation has executed. but the thinking was this is of war to win the populace over and to define what it meant to be an american nation. actually they escaped and plead to canada but he knew they were americans. >> you would think that but the story about andre flies in the face of that logic.

>> but the british andre was hanged after two days with the commission but smith caught under the exact same circumstances with the loyalist you thought he would be given the same treatment but he was not he was given the same rights and weeks and weeks of trial and he got off. >> please wait for the microphone. >> it is done to teach you and it will be fun to read the book. andre violated the laws of war by his actions. where would you suggest he be tried?

but can it said did not become independent until 1867 there were minor skirmishes but it took them a long time. so maybe it was worth it after all. [laughter] but my real question. >> the slaves did not become free until 1866 in this country that is about the same time so from the point* of view of many americans they were not free until about the same time. >> trooper i was just correcting the record you said about the same time. but the real question is with the articles of confederation. to use the term commander in chief when the things that could not be done but it much are about making more.

so interesting and i wonder if you look it in the historical materials there is anything to learn from that period. >> to go on about andre i think washington did the right thing and lover you cannot effectively sent the message you need to send to use the military commission and properly so. with the articles of confederation they are a bit of a mess so they were appointed chief before the

articles were enacted and the governing documents under which you are governed in this messy because who is in charge. initially the continental congress micromanaged washington and had various committees to govern the war effort and i described the war effort under the articles was like a schizophrenic squirrel jumping from problem to problem to correct these mistakes and who is in charge. when we get to the battle of york washington doesn't think he can defend new york city. we have no baby. -- may be why do we try to

defend an island? this was not lost on him. he was smart enough to know he should not defend and violent but congress says we expect you to make every effort to defend this and they lose badly not surprisingly by the time the british are chasing the continental army to philadelphia they finally say this is a working we need to change ravines and that is when the grant washington was dictatorial powers -- powers with the makeup to run the of war but then once they reconvened washington starts to get his

act together and congress says keep these people away from us. and dictator back then was not a dirty word that it is now to say he had full military control he was the political dictator to have been ejected and to govern lot and congress never gave up the law but he was number one in charge and they kept standing the dictatorship over and over and that is how they came to create the american commander in chief through fits and starts to begin with a week commander and end up with a strong commander.

>> are you making an argument or the suggestion that the term commander in chief as used in the constitution and i asked about the previous articles refers to that commander in chief who washington was at the end when the continental congress had given dictatorial powers? >> that is absolutely right. is devolving term it did not mean that much but then it came to mean a whole lot more. >> do you have the contemporaneously notes or letters from the constitutional convention or previously with all this baggage? >> right. the congressmen were leading

this ferociously and washington himself tried to determine we have powers now it was an experiment that america was a great experiment from the start especially the commander-in-chief with congressional to military sites. >> also another distinguished man named bernie. >> one of the things that washington had in 1775 the battle of lexington washington becomes battle of lexington washington becomes commander in chief yet what was appointed was a war council and he arrived on the scene with the british trapped in boston where they talk funny. did they talk funny then?

>> no. not yet. >> but washington said i am not the greatest general in the world that these people are all trapped in 110 and cannot get out. in to say they may ruin the town. navy in the yankees today which imf said about. thank you. says something that is very germanic he had me going around in circles george washington was 22 years old at the time with the british national guard and also a surveyor in the french we're

going out with so many miles squared to say this is ours. so they get a hold of washington and they send him out to do with the french were doing. he had not gone out to mind when he ran into a group of indians and the head india known as the chief said and will help you out. i know the french. and it will also help so washington being 22 years old needed all the help he can and he did.

so they go down the trail to come back shortly there is a group out looking for you will be here in the morning and me announced to washington ahead in the inn was killed by the french colonel who was leading this group of people. >> and the french eight his father? i found no evidence. >> but he tells washington they're coming and washington and sets up the trap and an ambush and kills 46 of them. but later the king of england says this young man did that take too kindly to

that. with those soldiers. >> the diplomatic party. >> and the head in the and brings them in front of washington and chops off the top of his head and reaches into his school to bring out the brain and says to his father i avenge you father. i think that would disturb me a little bit of that happened but he adjusted there and was not much that he could do but when he reported back he said we ran into some french military command indians helped to subdue them and the words he used was the thrill of the bullets flying to the year

gave thrill to my heart and that was his interpretation. >> it did. it really impacted his approach. originally when he was in boston he was listening to every word of the war council that congress appointed for him and was filled with novices that knew little about war but yet he felt obligated to listen to every word. they came to the york and did not want to withdraw and to once he became a dictator you keep listening to the war council so go ahead and stop. as it concludes to get the

opinion but they became more confident in his ability to dictate what the military would do and knew that we needed one commander and one person in charge. >> using the word dictator you mean he was assuming powers? were to use more not listen to the war council? >> it is hard with millet military versus political dictator it goes back since he was given dictatorial powers and he took full control. the americans love the

classics but they had their own twist and it was we give you all military power over defeating the enemy so with political power they retained it all. washington was you need that he never declared martial law. when it came to a matter of american citizens and property he majored to differ to the authorities. to be in control of the military with tactical decisions and other political decisions made, he

was very careful not to infringe upon congress. >> i'd like to follow up on the andre he was tried as a spy but smith was tried as treason -- trees and does that make a difference? >> it is true there both involved in the same conspiracy and plot. washington in the church reaction was to have them hanged as well. but when it came down to it he was not as swayed by that but the nationality going back to the loyalist who had

rights to win the hearts and minds of the american people that is more of the defining factor. for washington, he was not looking at distinguishing in that way but more that these two men were in cahoots together and they almost sold west point. >> just to clarify, most were tried by court martial so the way congress sought it gave both must be tried by a court martial so washington was making bigger moves with the andre case with the unauthorized tribunal. one was the foreign enemies

then there was another resolution that had those that were colluding with the enemy and both of them said the will try them by a court martial and they had been due process protection. the size of the board, a special oath, washington as the court martial could pass it as a president of the committee. there were definitely safeguards for a fair trial. >> what were the documents? >> what was the specific charges against andre and

smith respectively? >> for both of them that was working to betray west point. originally they had 10 charges against smith a inherited down to one very general charge which is that you were working with the enemy to betray west point and for andre it was your working with benedict arnold to the tray west point in disguise. >> follow-up on that. or whatever. [laughter] >> i am british but i promise i am not a supply -- a spy. my question is when we talk

about the revolutionary period greasy reprisal or things like that. we are not in that paradigm any more. to have better treatment so how does that development with a conflict background and how does that affect washington with similar problems like that? >> that is an excellent point*. not to go so far that

washington did access so we should do that today but i think the more humble approach where washington was meant to be the commander it is important to look for anyone who believes in democracy become as with the preamble of the constitution it does not say congress nor to for a more perfect union it was it was formed by the the people so it is important when we look at these provisions to see what we thought when we were enacting article ii, section ii. then fast forward to today a lot change. you mentioned how torture was used for reprisal but now we switch to more

individualized system of justice. it is an important starting point* for these investigations and there is some debate how long you should wait but it is important precisely because major players believe so. look at the washington d.c. heller decision where the supreme court, both sides are using historical arguments to decide these cases. it is alive and well and important to look at this history of bally's the starting point* of these issues. . .