If I were the Obama administration, I would be looking to put together an ad hoc task force of senior administration lawyers, led by Harold Koh, to defend the following propositions as matters of law. It is: okay to enter a country that is “unable or unwilling,” [temporarily recall Deeks to DOS] okay to treat it as armed conflict under jus ad...
In earlier posts I’ve talked about some of the gatekeeping points in the submissions process, although I’ve largely described them from a procedural angle. Today’s post deals with the substantive angle. Take the cursory review stage, when editors might sort incoming submissions into reject and consider further piles. Each journal and each editor will have their own policies (and thus...
I suspect that many of our readers already receive ASIL Insights, but for those of you who do not, I wanted to flag the release yesterday of Pakistan's Sovereignty and the Killing of Osama Bin Laden by Ashley Deeks, a former colleague of mine in the Legal Adviser's Office at the U.S. State Department. Deeks is now a fellow at...
Some have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in an armed conflict or in legitimate self-defence is not required to provide targets with legal process before the state may use lethal force .... The principles of distinction and proportionality that the US applies are … implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law .... Some have argued that our targeting practices violate domestic law, in particular, the longstanding domestic ban on assassinations. But under domestic law, the use of lawful weapons systems — consistent with the applicable laws of war — for precision targeting of specific high-level belligerent leaders when acting in self-defence or during an armed conflict is not unlawful, and hence does not constitute ‘assassination’.
The video is here. No big surprises. Dellinger's argument is based on the post-9/11 Authorization for the Use of Military Force and that under international law "you can kill enemy combatants." Dellinger explains that drones attacks on other al Qaeda members are legal too. However, regarding drone attacks, I wish he hadn't said that that there was "a policy judgment" to be made...
Cross-posted at Balkinization In response to my post a few days ago lamenting the post-bin Laden urge to rehash debates about torture’s efficacy, Ben Wittes writes to disagree. “Pearlstein is right, of course, that we will never know with any certainty whether any specific piece of information that the CIA program developed would have been developed had the program used no coercion–or...
The United States military sent some of its most highly trained combat experts into Pakistan without asking for Pakistan's permission. They entered Pakistan's airspace in military helicopters specifically equipped to defeat the Pakistani air defenses. According to a national security official in the immediate aftermath of the operation they went there for the sole purpose of killing Osama...
Parag Khanna of the New America Foundation has an essay at CNN.com which gave me cognitive whiplash. He tries to set out an argument that the killing of Bin Laden signifies an important evolution in the rule of law. Khanna, however, seems to like the idea of the rule of law without actually wanting to deal with the details of...
Often used to model legislative politics, positive political theory (PPT) has core insights that can be applied to the journal submissions process as well. There are important differences between the legislative and editorial processes. Like legislative action, however, editors' deliberations and voting on submissions are a process of aggregating preferences within the constraints of voting rules and other institutional features....
And if that's not bad enough, one of Fox's DC anchors announced that "President Obama is, in fact, dead."...
Cross-posted at Balkinization For all the interesting things that might be said about the still-emerging circumstances of bin Laden’s death, it’s disheartening to see conversation already turning to old, old debates about interrogation. Peter King (R-N.Y.) was naturally quick to suggest that reports that information leading to bin Laden’s capture came from detainees held at Guantanamo Bay should lead Obama...
Over at Lawfare Ben Wittes aks Will Bin Laden's Death Reignite the Interrogation Debate? I think there is little doubt that it will. Consider this recent post by Marc Thiessen over at The American Enterprise blog. Thiessen writes: "So Guantanamo detainees provided the key intelligence that allowed the CIA to track down bin Laden. But not just any Guantanamo detainees. It turns...
