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...
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...
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...
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...
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...
