I will delay any detailed response to Kevin’s typically insightful posts about the CMCR’s recent decision, particularly its conclusion of a “substantial showing” that conspiracy to violate the laws of war is “an offense against the law of armed conflict.” For now, I will note that I have some similar concerns to those Kevin expressed (e.g. on the relationship or...
Apparently, Sen. Tom Coburn of Oklahoma is blocking the nomination of Dean Janet Levit, of University of Tulsa Law School, to the U.S. Court of Appeals for the Tenth Circuit. The Daily Oklahoman reports: Oklahoma City attorney Mike Turpen, a longtime Democratic Party fundraiser with ties to the White House, said Coburn told him in July that Levit was not going to receive his...
As I noted in my previous post, the CMCR's opinion in al-Bahlul repeatedly cites the Nuremberg-era crime of criminal membership in defense of its belief that material support for terrorism and conspiracy qualify as war crimes. I continue to believe that the best counter-arguments to that idea are (1) that criminal membership was not a war crime at Nuremberg (the...
Our esteemed guest blogger Michael Scharf and my Washington College of Law colleague Paul Williams brought out a very interesting volume from Cambridge UP last year, Shaping Foreign Policy in Times of Crisis: The Role of International Law and the State Department Legal Adviser. Over at Lawfare, Jennifer Daskal, friend to many of us from her days at Human Rights...
Like many Americans, especially those of us living or working in New York City at the time, I have very personal and powerful memories of the September 11, 2001 attacks. I will spare our readers my own reminiscences, however, and stick to something a little more relevant to this blog's subject matter: the international law of armed conflict. While many pundits...
I've received a number of emails arguing that I do not take seriously enough the CMCR's analogy between conspiracy and the crime of membership in a criminal organization. The obvious response is that: (1) criminal membership is not a war crime; (2) the elements of conspiracy and criminal membership are completely different; (3) the tribunals on which the CMCR relied...
Even I thought the Court of Military Commission Review couldn't reach such an absurd conclusion. I was wrong: The Government has made a “substantial showing" that the conduct alleged, including appellant’s (an AUEC’s) agreement with bin Laden and others to commit the object offenses, with knowledge of and intent to further the unlawful purposes of that agreement, and commission of the...
I've been attending (and will be speaking) at a conference at Case Western Reserve University Law School in Cleveland entitled "International Law in Crisis." You can catch the webcast here. A brief description below. 2011 is shaping up to be one of the most turbulent years in history. This timely symposium is designed to examine both the application of international law...
From Siobhan Gorman (of the Wall Street Journal's national security team) a nicely done retrospective on the rise of the drones as part of strategy, technology, law, ethics and philosophy. It's a reasonably short piece, quotes the Very Great Bobby Chesney, and gives a good sense of the history of how it came about, linking policy and strategy, all in...
As part of an series of "mea culpa" posts by various post 9/11 players over at the Lawfare blog, Jack Goldsmith recounts how his views on lawyering within the government's national security complex have changed, from skepticism to acceptance. On the use of law by those seeking to constrain the government's discretion from the outside: I started the decade in ...
Where Gaddafi should be tried -- if and when he is captured -- has become quite the hot-button issue recently. Personally, I'm with David Kaye: he should be tried by the ICC, but the trial should be held in Libya. I'm also not opposed to Libya asserting its right under the ICC's complementarity regime to try Gaddafi domestically, although I'm...
My bad for not mentioning this some time ago, but tomorrow, Thursday, 12 noon, we at Washington College of Law, American University, will have Michael Leiter, former director of the National Counterterrorism Center, as keynote speaker. He will be followed by a panel that will include myself and my colleague Steve Vladeck — but more important than either Steve or...
