Dave Kopel at the Volokh Conspiracy Tries To Be Clever

by Kevin Jon Heller

And proves he is neither very funny nor even remotely interested in anything resembling intelligent debate:

Hypothesize that the Obama administration, or perhaps foreign/international courts, prosecute and convict various officials of the Bush administration. Further assume that the new President who takes office in 2013 or 2017 has promised “I will ensure that the crimes of the previous administration are vigorously prosecuted.”

Which, if any, acts of the First 100 Days of the Obama administration might be prosecuted? In answering the question, you may aggressively interpret any statute, treaty, jurisdictional claim, etc., in favor of the prosecution, but the interpretation may not involve a greater stretch than would be required to hypothesize the convictions of Bush, Cheney, Rumsfeld, their attorneys, CIA officers, and so on.

For my part, I’ll continue to hypothesize the existence of the Ministries Case, US prosecutions of Japanese soldiers for waterboarding, the Convention Against Torture, the Rome Statute, the federal torture statute…


14 Responses

  1. It’s David Kopel.

    Res ipsa loquitur.

    Et cetera.

    But at least you don’t just pass it by in silence. That kind of post deserves derision. As do they who make them.

  2. VC connoisseurs must give Kopel partial credit for any post that nowhere mentions guns or the Second Amendment.

  3. David Kopel (and several other VC members) are empirical evidence that law schools need higher tenure standards.

  4. Response…

    I will try to be clever too. If we’re going to prosecute the Bush lawyers, I suggest also to make a list of those lawyers, many of whom are members in good standing of the ASIL, who gave and continue to give legal advise to murderous groups and regimes on how to justify before the world their acts of oppression and terrorism, as the case may be.

  5. Fernando…

    You’re doing it wrong.

  6. What a grouchy post. =/

  7. BO’s violating international law by not prosecuting accused torturers, right? Could he be prosecuted for that in international courts?

    I realize that’s an omission, not an act.

  8. Last comment: I’m not sure you understand what the word “proves” means… (sorry for not combining these 3 comments).

  9. Hehe… you’re going to take a swing at Kopel and leave Jim Lindgren untouched?

    At least Kopel leaves his comments open.

  10. MG,

    Excellent point!

  11. Wait a second. I point out that you use the word “proves” when you mean nothing like “proves.”

    “M. Gross” makes a snarky, substanceless slam at Jim Lindgren.

    He has an excellent point? This blog is starting to look like a hackfest…

  12. Job,

    I have no idea what your comment about “proves” means, because you didn’t bother to explain what you were trying to argue.

    As for your comment about Obama, I wish that his failure to investigate qualified as a war crime.  Many scholars have argued that a commander’s obligation to punish crimes committed by his subordinates extends to crimes committed by those subordinates before the commander took control. Cassese is an example. Unfortunately, the only case that deals with the question, decided by the ICTY, rejected that proposition.

  13. I merely take issue with Mr. Lindgren’s tendency to post obviously inflammatory material (Often of little relevance regarding legal issues) and then either throw a fit over the comments or more recently, simply prohibit them at all.

    It is, of course, the property of the Volokh Conspiracy bloggers, and they may forbid comments if they wish, but I’d also point out the author is under no obligation to even read the comments.  If Mr. Lindgren doesn’t wish to get any feedback, he can simply ignore it.

    I’d post this on Volokh Conspiracy, but that’d require I could find a thread of Mr. Lindgren’s that allows comments.

  14. Mr. Heller,

    I didn’t think it would require explanation. You wrote, “And proves he is neither very funny nor even remotely interested in anything resembling intelligent debate:”

    But trying, and failing, to be clever, or even being snarky and sarcastic, does not “prove that you’re not interested in anything resembling intelligent debate.” It might make people less interested in engaging you, or be stupid, or counterproductive, but engaging in one type of discussion doesn’t prove you’re not interested in another type. 

    I believe most VC posters have disabled comments because they don’t like to take the time to moderate the threads, which they feel obligated to do if they allow them. I’m sure Mr. Lindgren would welcome thoughtful emails.

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