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21 Apr

The WSJ Editorial Page takes UN Ambassador Susan Rice to task for claiming that the recent UN Security Council "presidential statement" is legally binding on North Korea.  Here is Rice's full statement on this point, I believe. Reporter: Ambassador, there seems to be some debate as to whether there’s any legally binding items in this presidential statement. We talked to one...

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18 Apr

More evidence that the CIA interrogators did not rely in good faith on the OLC memos: Bradbury's 30 May 2005 memo acknowledges (p. 37) that the CIA Inspector General's report found that the CIA waterboarded Khalid Sheikh Mohammed 183 times in March 2003 and Abu Zubaydah 83 times in August 2002.  That regime far surpasses the CIA's own internal guidelines...

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16 Apr

I argued below that "good faith reliance" on OLC opinions does not justify promising CIA interrogators that they will not be prosecuted for their criminal acts.  With regard to waterboarding, it is important to note that it seems clear some of the interrogators cannot even argue good faith reliance.  Consider the following footnote from Bradbury's May 10, 2005, memo, discussing...

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15 Apr

As with the earlier comments by Ed Swaine, I greatly appreciate Michael Ramsey’s astute observations regarding how political commitments fit into the constitutional discourse. I've endeavored to provide my initial responses to each of his suggestions below, although surely Duncan and I will build from his comments as we develop our theories going forward. We are pleased that Professor Ramsey agrees...

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15 Apr

[Michael D. Ramsey is a Professor of Law at the University of San Diego Law School and author of “The Constitution’s Text in Foreign Affairs” (Harvard Univ. Press, 2007).] Duncan Hollis and Joshua Newcomer have written a fascinating article on an important and underappreciated topic. I agree with their basic propositions, especially that “political commitments” (as they call non-binding personal pledges...

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15 Apr

[This post was jointly authored by Duncan Hollis and Joshua Newcomer] Ed Swaine brings his typical thoughtful (and rigorous) method to our article, and we greatly appreciate his insights, not only for engaging with our ideas but also for suggesting how we might advance them in future scholarship. Since Ed has framed his comments as questions, we’ve endeavored to provide...

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15 Apr

Thanks to Opinio Juris for hosting this discussion and to the editors of the Virginia Journal of International Law for their discerning taste in publishing such an excellent article. Duncan Hollis (who has published widely both on the international aspects of treaties and on their domestic significance, and so is expertly situated to address this question) and Joshua Newcomer (already publishing...

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15 Apr

I in no way believe that Deb exhibits “virtually pathological level of tribal loyalty and monumental intellectual dishonesty,” and I doubt that Glenn does either.  That said, I am not sure that Deb's (clearly initial) thoughts on the Obama administration avoids Glenn's basic critique -- that Obama supporters justify his increasingly Bush-like policies by de-emphasizing substance in favor of personality...

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15 Apr

[This post was jointly authored by Duncan Hollis and Joshua Newcomer]  We would like to start by expressing our thanks to the editors of the Virginia Journal of International Law, the (other) hosts of Opinio Juris, and especially Professors Edward Swaine and Michael Ramsey for commenting on our article. "Political" Commitments and the Constitution (available on SSRN here) explores the constitutional validity...

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14 Apr

The Virginia Journal of International Law is delighted to continue its partnership with Opinio Juris this week in this online symposium featuring three articles recently published by VJIL in Vol. 49:3, available here. On Wednesday, Professor Duncan B. Hollis of Temple University James E. Beasley School of Law and Joshua J. Newcomer, Clerk for the Honorable Carolyn Dineen King of the...

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