While I fully agree with Justice Kennedy’s majority opinion and Justice Souter’s concurring opinion in Boumediene v. Bush, I found it significant that neither those opinions nor the two dissenting opinions of Chief Justice Roberts and Justice Scalia found it necessary or desirable to refer to international law despite the relevance of that body of law to the earlier Guantanamo...
In what can only be described as a stunning development, Trial Chamber I has stayed Thomas Lubanga Dyilo's trial because of the Prosecutor's failure to disclose exculpatory evidence to the defense. Indeed, the decision seems to indicate that unless the Prosecutor reverses course and agrees to disclose the evidence, the Trial Chamber is prepared to dismiss the charges and...
A confession: except for the basketball, I don't watch the Summer Olympics. In part, that's because I'm not particularly interested in the medal sports. The more significant reason, though, is that I simply can't stomach the rampant jingoism that inevitably accompanies the Games. Case in point — the reaction to Becky Hammon's decision to play basketball for...
Many thanks to the Opinio Juris team for hosting this conversation, and to colleagues who have already offered such interesting and insightful posts. In this spirit of exchange, I've crafted comments that I hope will challenge and extend some of their observations, as we all continue to digest this momentous opinion on- and off-line. The benefit of continued reflection will...
Last week, the states parties to the U.N. Convention on the Law of the Sea (UNCLOS) held elections for seven of the 21 seats on the International Tribunal for the Law of the Sea (ITLOS). Here are the results: Among those seven members, Judge Wolfrum (Germany), Judge Akl(Lebanon), Judge Marotta Rangel (Brazil), Judge Chandrasekhara Rao (India) and Judge...
I regret that my post is delayed somewhat by travel. I am at present writing from Venice, en route to which I had occasion to do more thinking about the implications of Boumediene than I did for detailed dissection of its precise phraseology. The fortuity of my presence overseas allows me to report the prevailing media spin that...
I want to return to the issue of the Court’s discussion of de facto sovereignty, which has the potential to be one of the most important holdings of Boumediene. The reason it is so important is that the Court’s articulation of de facto sovereignty has the potential to be the new test for the application of constitutional guarantees to...
I also would like to begin by expressing my thanks to the Opinio Juris team for giving me the opportunity to share some thoughts on the Boumediene decision. My post is a bit tardy due to the fact that I have been in Israel staying in some places with limited internet access. More on some perspective judicial review...
Perhaps the least persuasive part of the largely unpersuasive Boumediene opinion is its attempt to distinguish the most relevant and binding precedent on the subject: the Supreme Court's 1950 decision in Johnson v. Eisentrager. In Boumediene, the Court effectively overruled Eisentrager's holding that enemy aliens cannot have the benefit of habeas corpus when held outside the territory of...
Thanks very much to Opinio Juris for including me in this conversation. I look forward to trading ideas with the terrific group of commentators that Roger and his colleagues have lined up. I should admit from the outset that my instincts here are not exactly neutral: while I now teach national security and international law at Fordham,...
Chief Justice Roberts is right: Guantanamo is “unique.” [p2] But can that which is unique be analogized? If not, why work by analogy? Yet this is what the justices have generally sought in the past. They ask, what case can I find that looks like today’s? Simple answer? None. To ask this question of the past is to seek what...
Though the opinion in Munaf and Omar should give us all some pause, I'm still thinking that yesterday's Boumediene opinion comes as close as I've seen the court come to sounding the death knell for broad judicial deference to the executive on matters of national security. The majority opinion doesn't just embrace a functional approach to resolving questions of the...
