If you are already in DC for the ASIL meetings and have some free time today (Wednesday), you might consider coming out to the edges of DC - to Washington College of Law, American University - for a conference sponsored by the ICRC, ASIL's Lieber Society (the laws of armed conflict interest section), and the Center for Human Rights and...
Greg Miller has a fascinating front-page story in the Washington Post yesterday (Sunday; it appears to be behind a free registration wall) profiling "Roger," the mysterious head of the Counterterrorism Center at the CIA, a key figure in the pursuit of Bin Laden, and a principal architect of the drones program. Here’s the money quote, borrowing from Lawfare: Roger, which is the first...
My book, Living With the UN: American Responsibilities and International Order, is now in stock and on-sale at the Hoover Institution Press website. I have a copy in hand and I’m delighted to be holding it. It’s not quite like holding your new baby – but for an inanimate object, it’s closer than you might have thought. (Julian - feel free to weigh in here: I'm thinking having one's new book in hand is kind of like holding one of those Japanese roboticized teddy bears for soothing the elderly with dementia, but maybe that's just me.)
It will be a couple of weeks – April 17 – before it's available through Amazon, Barnes & Noble, and other online sellers. A Kindle edition will be released on April 17 as well. Over the next couple of months, I will be talking about various themes in the book – UN-US relations, the nature of the UN, the different ways in which the US should engage (or not) with different parts and functions of the UN. Julian will be doing the same with his and John Yoo's provocative new book, Taming Globalization, so expect to hear a lot at OJ about themes in our books (we have, btw, covertly set up an algorithm in which the more OJ readers buy our books, the less we will talk about them!). To start with, however, I wanted to go to a very different topic – this one about publishing, choosing a publisher, and why I chose the Hoover Institution Press. This follows on some excellent guest posts by senior academic press editors in the past here at OJ - I'm really extending my take on those past discussions. I'm hoping that my thinking here will be useful to some OJ readers thinking about publishing.
This is a policy essay, not a “scholarly” book – it has about twenty footnotes for the whole thing, and a bibliography of secondary sources aimed to be accessible to those without a university research library or knowledge of how the UN online archives work. My interest in this case is dissemination of the ideas in the book, not staking out academic turf. So my general choices were three: One, find a commercial trade publisher, which seemed improbable given the subject matter, the way it is written, and my lack of trade press publishing in the past. Two, find a university or academic press; this seemed like the obvious thing, and in fact there were several options that direction, notwithstanding that this is something like the opposite of the dense academic monograph. Third, go with a think tank policy press in which case, given the history of the project and my affiliations, it would be Hoover.
The Hoover publishing folks have been marvelous. They have been fabulous on production values, editing and copy editing, all the professional production elements. They have been patient to a fault in waiting for the manuscript and letting me make later changes. And they have excellent marketing staff and have a commitment to getting the book out there in a way that is only sometimes true of academic presses whose primary audiences are academics and university libraries. But several academic presses are great in all these ways, too, so one has to ask, why consider a think tank press? After all, isn’t a think tank press – even one associated with a university, like Hoover, and moreover a conservative think tank – taking a hit in academic prestige and respectability?
Jhesus-Maria, King of England, and you, Duke of Bedford, who call yourself regent of the Kingdom of France, you, Guillaume de la Poule, count of Suffort, Jean, sire of Talbot, and you, Thomas, sire of Scales, who call yourselves lieutenants of the Duke of Bedford, acknowledge the summons of the King of Heaven. Render to the Maid here sent by...
Alan Kaufman, a career national security lawyer and retired Navy JAG, has a fine review-essay of Stephen C. Neff's Justice in Blue and Gray: A Legal History of the Civil War over at Lawfare. Alan, who is a former student of mine a really long time ago at Harvard Law School as well as an occasional commenter here at OJ,...
The Court’s order may reflect that a majority or plurality of the justices would like to decide the case on the larger issue of whether the Alien Tort Statute even applies to torts committed in other countries, rather than on the narrower issue of corporate liability, and that other justices want to have more briefing on the issue, which was not addressed by the Second Circuit. As I noted in my post about last week’s oral argument, Justices Kennedy, Roberts, and Alito focused almost all of their questions on the diplomatic tensions and problems under international law caused by extraterritorial application of the ATS. This was also the issue that I addressed in my own amicus brief, and that was the focus of the amicus briefs of the Netherlands, Britain, and Germany …. This development will put the Obama Administration in a difficult position. In its original amicus brief in support of the petitioners, the Administration argued in favor of corporate liability, but made no mention of the numerous diplomatic complaints about the ATS filed by other countries. Assuming that the Administration files a new amicus brief, it will face a dilemma. It will either have to argue against extraterritorial application, contrary to the position of human rights groups and undercutting its prior argument in favor of corporate liability. Or it will have to argue in favor of extraterritorial application of the ATS (at least in some circumstances), which is contrary to the position of many foreign governments and inconsistent with international law principles of jurisdiction. As three members of the International Court of Justice said in the Congo Arrest Warrant case, “[w]hile this unilateral exercise of the function of guardian of international values has been much commented on, it has not attracted the approbation of States generally.” Moreover, the Obama Administration would have to reverse the arguments against extraterritorial application of the ATS made by the Bush Administration in its brief to the Supreme Court in 2008 in the Apartheid case (which the Solicitor General may be reluctant to do). This may be one reason why the Administration asked the Supreme Court not to address the issue of extraterritoriality in its original amicus brief.One might also add that the amicus brief drafted by Jack Goldsmith in support of defendant corporation Shell seems to have had an effect; Goldsmith and his amicus brief were mentioned by name in the oral argument. The Goldsmith brief was not primarily about extraterritoriality – it was much more about whether this was international law as such, or instead some kind of well-intentioned but nonetheless faux-international law committed to the hands of US courts. (I have sometimes referred to it here at Opinio Juris as the “law of the hegemon” which US district courts have been persuaded by ATS plaintiffs’ lawyers, mistakenly in my view, to regard as “international law.”) This then combines with a general worry on the part of Justice Alito – but not he alone – that particularly the alien-to-alien cases taking place in an alien land simply have no reason to be in US courts, and that what little can be gleaned about the history and purpose of the statute does not support extraterritorial application, at least in the territory of another sovereign. Piracy on the high seas, yes – and hence presumably the importance of the qualifier in the Court’s briefing instructions to address not extraterritoriality as such, but instead territory of another sovereign. (But see Jordan Paust and Eugene Kontorovich each commenting separately on the piracy issue, below.)
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:
... from this morning's hearing: Kiobel and Mohamad. I would be curious as to readers' prognostications of how the Justices will rule based on the oral arguments today. (Thanks for comments, interested in more. For example, where did this extraterritoriality question suddenly materialize from and does it portend something different from what was originally thought? You can also see John...
All is proceeding as my colleague Anna Gelpern has foreseen. Indeed. Years ago, she mentioned to me in passing that the markets seemed remarkably unaware, or anyway remarkably sanguine, about the question of whether local law (e.g., Greek law) or foreign law (e.g., English law) governed as the choice-of-law clause for the vast tonnage of European sovereign debt. Today, we find...