My thanks to Professors Jinks, Goodman, and Slaughter for their reply, though I fear that their response is in many ways as misplaced as they think that my initial argument was. So, let me make a few things clear. The substantive point of disagreement between us is the difference between an international and a non-international armed conflict: is it in the...
[Editors' note: We welcome the following response to Marko Milanovic's initial guest post regarding the Hamdan decision. Ryan Goodman is Rita E. Hauser Professor of Human Rights and Humanitarian Law at Harvard Law School; Derek Jinks is Professor at the University of Texas Law School; and Anne-Marie Slaughter is Dean of the Woodrow Wilson School of Public and International...
Yesterday's immigrant demonstrations were predictably smaller than last year's, given the diminished risk that something really bad will come out of Congress at this point (remember, the House had passed a bill making presence in violation of the immigration laws a felony). As reported here in the WaPo, the emphasis at the gatherings was on keeping families intact. The...
Dianne Feinstein introduced a bill on Monday which would shut down Guantanamo. (Not clear whether it would also shut down the military commissions - the bill calls for release, detention as an enemy combatant, or prosecution before an Article II court or "military legal proceeding before a regularly-constituted court," which of course the commissions are deemed by the MCA.)...
I said a few days ago that I wanted to do a few posts on the unusual topic of the intersection between genocide and religion. Let me start this discussion by asking whether religion is somehow a factor in the decisionmaking process of those who choose to stand up and resist genocide. That was the question raised a...
Many thanks to all of yesterday’s commenters. I guess that we are in agreement on the fact that the Court did apply Common Article 3 as treaty law, not as customary law or the ‘common law of war.’ Marty makes it quite clear why the Court did so – by interpreting CA3 as a treaty obligation, the Hamdan decision, formally...
Apparently, U.S. presidential candidate Sen. John McCain is reading Anne Marie Slaughter (but then again, who is not)? Yesterday, McCain delivered an address outlining his vision of a "League of Democracies" that could act outside the U.N. system. We should go further and start bringing democratic peoples and nations from around the world into one common organization, a worldwide League...
Here's a recent decision out of the Ninth Circuit finding a Friendship, Commerce, and Navigation treaty not to preempt state employment law, at least not with respect a whistlerblower statute. (H/T: David Zaring and the Administrative LawProf Blog.) But I was unaware that FCN treaties do allow discrimination on the basis of nationality, in favor of nationals of...
In this post I will briefly explain the three (or four) different arguments presented in the Jinks, Goodman and Slaughter amicus brief, and how the Court’s judgment reflects these arguments. These are: (1) Hamdan was captured in the course of the international armed conflict between the United States and Afghanistan. He is arguably entitled to POW status, and the CSRT procedure does...
My colleague, Jaya Ramji-Nogales, writing over at IntLawGrrls, is reporting a settlement of the dispute over bar dues between foreign defense counsel and the Cambodian Bar Association. The compromise--a one time bar fee for foreign lawyers of $500--removes the last of many roadblocks that had been holding up the tribunal for months. It now looks like this hybrid...
As announced in today's orders, the Supreme Court has granted certiorari in Medellin v. Texas. Cert. briefs are available here. Not surprising, given that both Mexico and the United States filed amicus briefs supporting the grant of cert. ...
The Court’s holding and reasoning in Hamdan are unclear on one crucial issue: whether the United States is legally engaged in an armed conflict with the al Qaeda terrorist organization. Why is this issue so important? Well, the entire legal strategy of the Bush administration depends on it, both internationally and domestically, as vastly different rules of international and...
