In association with the International Commission of Jurists

Author: Steve Vladeck

17 May

[Steve Vladeck is Professor of Law and Associate Dean for Scholarship at American University Washington College of Law.] This is the third day in our discussion of Professor Dickinson's book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below. One needn’t look far for proof that the issues raised by Laura Dickinson’s Outsourcing War and Peace with regard to the absence of liability for military contractors are at the forefront of contemporary law and policy. If outsourcing is here to stay, then it seems only right to ask how we might ameliorate some of the concerns that such privatization raises. And although I think Deborah Pearlstein is exactly right to link the problems of contractor liability to the broader “waning public accountability for national security and military affairs more generally,” the specifics also matter, since a host of recent legal developments have focused on the case for (or against) contractor accountability as such. To that end, Professor Dickinson, who champions the need for greater civil and criminal liability, already noted last Friday’s decision by the en banc Fourth Circuit in the al-Shimari case concerning whether victims of torture at Abu Ghraib can pursue state law tort claims against the military contractors allegedly at fault (for now, they can). And we should hear soon from the Court of Appeals for the Armed Forces, which heard argument in April in United States v. Ali on the question whether the Constitution allows the military to court-martial civilian contractors accompanying U.S. forces in the field during overseas “contingency operations.” But for all the attention that al-Shimari and Ali have received from observers like Professor Dickinson, I want to suggest in this post that we would do well to also consider United States v. Brehm—a less-noticed appeal argued yesterday before a three-judge Fourth Circuit panel—as a reason to search for nuance in the quest for a coherent approach to contractor liability.
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24 Feb

Just two days ago, in his dissent in Douglas v. Independent Living Center of Southern California, Chief Justice Roberts argued that Medicaid beneficiaries should not be able to pursue injunctive relief under the Supremacy Clause against California state officials alleged to have violated the substantive provisions of the federal Medicaid statute, given that the federal law neither (1) provides a...

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01 Aug

I must confess that I've been a bit cowed into silence by the heavyweight detention discussion between Deborah, Marty, and Ben. At the risk of wading in, though, I think Ben's point in his most recent post -- that detention should be based upon "dangerousness in the context of a showing of some significant relationship with groups against which Congress...

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30 Jul

I suspect that, thanks to Roger's framing and Marty's and Deborah's thoughtful opening salvos, we're not too far from getting to the two big questions with regard to Ben's proposed detention statute. I have some thoughts as well, especially as to whether we need a new hybrid judicial system to handle these cases, but wanted to wait for Ben to...

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29 Jul

As usual, I agree with much of what Marty says, especially Marty's suggestion that he is almost inclined to say that this is the single volume to read to find out where we are and where we've been (query whether the same might also be said about Jane Mayer's new book, but more on that later). Marty is also right,...

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12 Jun

It didn’t take long for the media and the commentators to quickly seize on the real question after Boumediene: now what? Let me begin by suggesting there are at least four categories (and probably more) of cases in which we must separately assess Boumediene’s implications: Non-citizens detained at Guantánamo challenging their detention. Non-citizens detained at Guantánamo challenging their pending trial by military...

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12 Jun

First, my thanks again to Roger, Peggy, and the rest of the OJ crew for the opportunity to share some preliminary thoughts on Boumediene. Obviously, there’s already a lot out there, with much more yet to come. Rather than tackle the big and obvious headline stuff, or try to respond to other points already made, I want to focus on...

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25 Mar

First, my thanks to Kevin, Peggy, and the OJ crew for a chance to post my own initial reaction to Medellín. Leaving the international law to the international law scholars, and the Court’s odd parsing of the VCCR’s ratification history to those who are more familiar with it, my own interest in the Chief Justice’s majority opinion in Medellín is...

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