Author: Deborah Pearlstein

More on the End Game

Thanks to Ken for posting the link to Jeh Johnson’s important speech below, and bravo to Jeh Johnson for saying it aloud. In addition to the central passage Ken highlights, I might add this from Johnson’s speech (to reiterate, Johnson is General Counsel to the U.S. Department of Defense). “War” must be regarded as a finite, extraordinary and unnatural state of...

Searching for an End Game

If you haven’t already seen it, it’s worth taking a look at this morning’s editorial in the New York Times about the Administration’s targeted killing program. The editorial follows on a series of articles in recent weeks, including the Times’ own report that the Administration was in a scramble pre-election to codify (in some form) internal processes for deciding...

Journalists’ Guide to National Security Law

Just in time for the holidays, the American Bar Association and Northwestern's Medill School of Journalism are releasing a volume of essays geared toward folks who work on or write about or teach national security and foreign policy, but need a primer on the relevant law. National Security Law in the News: A Guide for Journalists, Scholars, and Policymakers...

“A Decade of War Is Ending”

Cross-posted at Balkinization Of the many memorable lines in President Obama’s eloquent victory speech on Tuesday, the Chicago crowd reserved some of its greatest applause not for the line trumpeting the economy’s ongoing recovery, but for the news that “a decade of war” was coming to an end. Tuesday’s speech was not the first time the President has made such...

What Congress Should Take From Hamdan

The D.C. Circuit’s decision overturning Salim Hamdan’s military commission conviction on the grounds that “material support for terrorism” is not a war crime under international law is significant in a host of ways. Steve Vladeck lists a few over at Lawfare. Beyond that, it strikes me that the decision offers a handful of indicators Congress might especially note....

Into the Deference Weeds in Kiobel

Rather than dwelling further on any prediction of what kind of opinion the Court is likely to produce following oral arguments in Kiobel (FWIW, I thought arguments went better for plaintiffs than I’d anticipated), I wanted to highlight what I thought was a particularly interesting exchange on whether the State Department’s views on the ATS were entitled to some deference by the Court. Background first. I’d read the U.S. Government’s latest brief as arguing for something like a case-by-case approach on the question of which extraterritorial ATS cases might be appropriate for federal adjudication. In the U.S. view, Filartiga (involving Paraguayan parties disputing the legality of conduct in Paraguay) presents a paradigmatic example of the kind of ATS suit that would be permissible, while Kiobel (involving non-U.S. multinational parties disputing the legality of conduct in Nigeria) presents a contrary example. The distinction between the cases, on this view, seems to turn on a combination of factors, including, but not limited to, the defendant’s presence in the United States (favoring jurisdiction in Filartiga), and the nature of the claim of aiding and abetting a foreign sovereign (disfavoring jurisdiction in Kiobel). But central to the justification for all such distinctions, according to the argument, is the interest of the U.S. government in avoiding conflicts in foreign relations, and the superiority of the executive over the courts in any given case in identifying what those foreign relations conflicts might be. (Again FWIW, I didn’t have the impression from yesterday’s arguments that any justice much liked this position.) So here’s the exchange that struck me (between the U.S. Solicitor General and Justice Scalia).

Kiobel Watching

For those watching for signs of how oral arguments went in the U.S. Supreme Court in Kiobel this morning, early consensus seems to be that while a majority of the justices were plainly concerned by a reading of the universal jurisdiction statute that would give the courts the power to hear cases with no substantial connection to the United States,...

Speaking of Drone Technology

While it's difficult at best to evaluate the truth of Iran's claims about its weapons development, this latest story struck me as both plausible and relevant to the ongoing debate about international law rules governing targeted drone strikes. "Iranian military leaders gave details of a new long-range drone and test fired four anti-ship missiles Tuesday in a prelude to upcoming naval...

The Yemen War

It’s not news that the United States has been actively using armed force in Yemen for some time. The Bush Administration reportedly launched a first drone strike against alleged Al Qaeda targets in the country (with the Yemeni government’s cooperation) back in 2002, and of course multiple reports have described the Obama Administration’s use of drones in the country...

The Must-Read I Should’ve, But Didn’t, See Coming

The cover story in this month’s Atlantic magazine is an article by former U.S. State Department head of policy planning, former dean of Princeton’s Woodrow Wilson School for Public & International Affairs, former Harvard Law professor Anne-Marie Slaughter. Anne-Marie’s writings on international institutions and international networks are, I’m sure, known to many OJ readers. For this reason alone,...

Targeting Again

The temptation is strong to write about the Supreme Court’s decisions this morning to deny review to the latest set of Guantanamo detainee cases to come before it. The denials of certiorari effectively let stand the decisions of the D.C. Circuit Court of Appeals, which has yet to find a detainee entitled to relief. But I’ll save the role...

Americans and Our Military

Of all the items to capture blogospheric attention this Memorial Day weekend – one of the few times a year in the States when more than a handful of popular news outlets focus on what it means for our military and our country that we have been at war for more than a decade – MSNBC pundit Chris Hayes’ remarks...