In association with the International Commission of Jurists

International Criminal Law

25 Sep

The Obama administration recently filed its motion to dismiss the ACLU/CCR lawsuit that seeks to enjoin the government from using lethal force against Anwar al-Aulaqi.  Predictably, the motion relies on a potpourri of reasons why no court should ever review the lawfulness of Obama's determination that an American citizen abroad should be summarily executed, including everyone's favorite "state secrets" privilege. ...

|
25 Sep

Bobby Chesney has graciously responded at Lawfare to my post about detention in non-international armed confilct (NIAC). Unfortunately, I think Chesney's response not only misconstrues what Steve Vladeck and I have been arguing, but also demonstrates some important misconceptions about IHL. To begin with, we need to understand exactly what we are arguing about. As Steve pointed out in one of...

|
21 Sep

The following is a guest post from Chimene Keitner, Associate Professor of Law at Hastings.  My thanks to her for contributing it! The Second Circuit’s recent panel opinion in Kiobel v. Royal Dutch Petroleum has justifiably spurred much talk in the blogosphere, including posts by Trey Childress, Ken Anderson, Julian Ku, and Kevin Jon Heller. Here are my preliminary thoughts. First, it...

|
16 Sep

Ben Wittes has a post at Lawfare today discussing ways in which the Obama administration might be able to avoid litigating the ACLU/CCR lawsuit challenging Al-Aulaqi's targeting.  One of his preferred responses is the "political question" doctrine; in his view, "enemy targeting" is a classic example of a political question with which the judiciary should not interfere. I would not be...

|
07 Sep

I have no desire to have the final word with Ken.  But I would like answers to two questions. First, where does Melzer or the ICRC say that armed conflict is a geographically-bounded concept, such that a participant in an armed conflict ceases to be targetable as soon as he leaves the battlefield?  I cited pages in Melzer's book on targeted...

|
07 Sep

I've got a new draft article on cyberthreats (you can download it at SSRN here).  I'd planned to wait before blogging about it, but events have overtaken my plans since Orin Kerr and Dave Hoffman are already discussing my ideas over at Concurring Opinions.  So, let me offer some responses to their questions here, and in the process explain (a) why some...

|
06 Sep

I have no idea why Ken posted his thoughts on the Washington Post editorial only at Volokh Conspiracy, but I wanted to respond to his post, because I think it is based on a critical misapprehension of the laws of war.  Here are the relevant paragraphs (my emphasis): [G]oing to the geographic definition of war as a legal concept.  This idea...

|
06 Sep

Ben Wittes calls attention today to a Washington Post editorial defending the targeted killing of American citizens like Al-Aulaqi: [W]hen a target is hiding in a lawless state or in one which refuses to cooperate in his apprehension, other alternatives must be considered, including targeted strikes. The decision to target an American must be a last resort, used...

|
03 Sep

Julian noted a couple of days ago that the ACLU and Center for Constitutional Rights have challenged the Obama administration's "asserted authority to carry out ‘targeted killings’ of U.S. citizens suspected of terrorism far from any field of armed conflict.”  The lawsuit claims, inter alia, that such killings violate the due-process rights of the targeted citizens. As Anthony Romero...

|
31 Aug

The Washington Post is reporting that a State Department contractor has been charged with leaking defense information to Fox News: A State Department contractor was indicted Friday by a federal grand jury in the District, becoming the latest target of a series of investigations into unauthorized government leaks to news organizations under the Obama administration. Stephen Jin-Woo Kim, 43,...

|
29 Aug

Julian's latest snide swipe at the ICC focuses on Bashir's visit to Kenya, which he describes as a "slap in the face to the ICC Prosecutor and the defenders of the Bashir arrest warrant."  Not surprisingly, Julian conveniently fails to mention the details of Bashir's visit: Sudanese President Omar al Bashir curiously flew in through Nairobi’s Wilson Airport, and ...

|