March 2012

AG Holder’s National Security Speech – Text

Below the fold is the written text of AG Eric Holder's national security speech today at Northwestern University Law School.  It can be divided into two basic parts - detention and terrorist trial issues, and then targeted killing, including of a US citizen.  Bobby Chesney has initial thoughts over at Lawfare, but here is the text (I have not put it in block quotes as it is very lengthy):

Kiobel Will Be Reargued

Sometimes oral argument really does reflect what is going on in the Justices' minds.  The Supreme Court will hear reargument in Kiobel next term (meaning October or so). The Supreme Court on Monday put over to its next Term a major case on lawsuits against corporations for human rights abuses in foreign countries, and ordered lawyers to come back with an...

AG Holder to Address Al-Awlaki Targeted Killing

Bobby Chesney reports:

In late January, Daniel Klaidman reported that the administration was inclined to have Attorney General Holder give a major speech specifying additional details regarding the legal framework governing the use of lethal force against Anwar al-Awlaki. That time has now arrived. DOJ released a statement last week indicating that the AG will give a major address on national security at Northwestern Law (congrats to NW’s new dean–and my former colleague–Dan Rodriguez for landing this rather big fish) at 3:30 central time this Monday (the 5th). Once the text is available, we will certainly have a link to it, and commentary, here [at Lawfare].

I imagine us folks here at OJ will have some commentary on this as well.  Stay tuned.  Update: Also at Lawfare, Rick Pildes argues that government silence undermines terrorism policies - an observation that I agree with, and which I make in similar terms at Lawfare as part of a comment on the possible operational role of the CIA in Afghanistan once US combat forces are formally gone.  As Pildes says:

In an earlier post, I explained why the credibility and sustainability of government policies on terrorism require government to be more forthright about the bases and explanations for its actions in this arena. In that post, I argued that the general dynamic of terrorism policy requires government to accept greater responsibility to explain its actions: “government actors need to recognize that these kinds of coercive and less familiar powers will understandably and predictably trigger concerns in many quarters about whether what is being done is justified; whether the actions rest on sound reasons; and whether the government is using these powers in appropriately restrained ways, including showing appropriate respect for the interests and values that these policies sometimes override (that is, are these values being compromised no more than necessary to accomplish the government’s legitimate aims). If government is going to use these powers, yet maintain credibility, it needs to “give back” to these understandable concerns by being more forthcoming than has typically been the case. In this post, I want to explain why the political economy of public discourse on terrorism policy provides a further reason government must recognize the need to engage with the public. Government today is in a constant battle for its own credibility. In the context of terrorism policies, numerous non-governmental organizations now exist (unlike many decades ago) whose essential purpose is to reflect distrust of government; to monitor government; and to criticize and challenge government, in part, as these groups would see it, to keep government honest. Precisely because these groups have no direct political power, one of their main roles is to seek to mobilize public opinion, including through a strong media presence. But few if any countervailing non-governmental organizations are devoted, of course, to the opposite perspective — that is, to defending government action as their raison d’etre. And modern journalistic culture, too, is based on the view that the media needs to turn a constantly skeptical or demanding eye on government policies, particularly coercive and less familiar ones. Partisan political actors, too, have their own incentives to seek to undermine the credibility of their opponents in power, including with arguments alleging lawless action. In this larger context, government simply has to be an active, full, constant participant in order to defend and justify the credibility of its actions, including their legal basis. An occasional government spokesperson offering a few words in explanation is far from sufficient.

I put a related argument this way, referring to an AP story by Kim Dozier reporting government discussions (denied by the Pentagon) that, following the formal exit of US combat forces from Afghanistan, elite units of SEALS, Rangers, JSOC forces, Afghan proxy forces, etc., might be tasked under CIA command, in the way that the attack on Bin Laden was carried out by SEALS but under operational command of the CIA:

One More Kiobel Post: The Importance of Sosa

Here is the final post in my conversation with Prof. David Weissbrodt on Kiobel and corporate liability under the Alien Tort Statute. It is worth emphasizing why I think the "choice of law" question is so crucial to resolving this case (and why Justice Breyer agrees with me on this point). In its 2004 decision, Sosa v. Alvarez-Machain, the Supreme Court decided...

Sovereigntism (Straight-Up), Courtesy of John Fonte

The Hudson Institute's John Fonte has a new book out, Sovereignty or Submission: Will American Rule Themselves or Be Ruled by Others? (Encounter Books).  From the title you don't have to know John to know what his answer would be.  Fonte is an unabashed sovereigntist, vaunting its "Philadelphian" strain (located in the people, as opposed to the Westphalian variant based...