Jack Goldsmith has responded to my post about the D.C. Circuit's rejection of co-belligerency in Al-Bihani. It's an interesting response, worth a few additional thoughts. To begin with, it is important to note that Goldsmith does not respond to the substance of the panel's criticism of the idea that state-centered notions of co-belligerency can be applied to non-state actors in NIAC....
In Part One of this series, I discussed how to decide whether to write a book and offered some thoughts about book contracts. In this post, I want to discuss the calling card that every potential book author needs to obtain a contract -- a good proposal. Bill Schabas can submit a one sentence proposal that says "I want to...
In its motion to dismiss the ACLU/CCR targeted-killing lawsuit, the government claims (p.5) that Al-Aulaqi can be lawfully targeted because Al Qaeda in the Arabian Peninsula is "an organized armed group that is either part of al-Qaeda, or is an associated force, or cobelligerent, of al-Qaeda that has directed armed attacks against the United States in the noninternational armed conflict...
Obama apologized on Friday for experiments conducted in Guatemala between 1946 and 1948 in which American scientists deliberately infected prison inmates, prostitutes, and mental patients with syphilis without their consent. The apology is a striking reminder that the Nazis were not the only ones that conducted horrific, non-consensual medical experiments on human subjects in the first half of the 20th...
In its motion to dismiss the ACLU/CCR lawsuit, the government argues that the plaintiffs lack standing to bring the lawsuit on al-Aulaqi's behalf, because al-Aulaqi has the option of surrendering to the government and bringing the lawsuit himself: Defendants state that if Anwar al-Aulaqi were to surrender or otherwise present himself to the proper authorities in a peaceful and appropriate manner,...
Ben Wittes at Lawfare and Adam Serwer at TAPPED traded posts today on the government's motion to dismiss the ACLU/CCR lawsuit. I think the exchange -- particularly Wittes' response to Serwer -- illustrates perfectly why discussions about national security between conservatives and progressives always seem to have a Pinteresque quality. Here is the point to which Wittes responded: I think it's...
In the same month that I traveled to Barcelona, I went to Paris to attend a conference organized by Paris I Professors Emmanuelle Jouannet and Hélène Ruiz Fabri and Professor Mark Toufayan of the University of Ottawa. According to its organizers, the purpose of the symposium, on “The Third World Today: Assessment and Perspectives,” was to “evaluate the situation of...
In the past few hours, both Jack Goldsmith and Ben Wittes have argued that the Obama administration has "reluctantly" claimed that the ACLU/CCR lawsuit must be dismissed because of the state-secrets privilege. Here, for example, is Ben: This is not in any sense a chest-thumping invocation of the privilege but a most reluctant one that quite overtly attempts...
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. ...
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...
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...
Steve Vladeck has been having a fascinating debate with Ben Wittes and Bobby Chesney about the merits -- or lack thereof -- of Sen. Lindsey Graham's proposed "Terrorist Detention Review Reform Act," which Wittes and Chesney support and Steve opposes. Steve doesn't need my help in the debate, which I think he's clearly winning. But I couldn't let one point...
