Yes it has! At least according to Andrew McCarthy, who argues in this National Review article that the Obama administration's brief in a case seeking to uphold its decision to deport Demjanjuk adopted the same narrow interpretation of the U.S. torture statute's requirement of specific intent as the much-vilified Bybee/Yoo memos. ...
With leaks and rumors flying fast and furious (and uncomfirmable) in D.C. this week about what the Administration is likely to decide to do with the remaining Gitmo detainees, it’s no surprise the detention debate is again heating up. If you haven’t seen it already, take a look at Lindsay Graham and John McCain’s op-ed in the Wall Street Journal...
Steve Charnovitz has this interesting post at the IELP Blog about a joint statement on the swine A(H1N1) flu virus issued by the FAO, WHO, WTO, and OIE (extra credit to those of you already on to the last one: the World Organization for Animal Health). Steve quite plausibly challenges the WTO's authority to make this kind of pronouncement as...
Congratulations to Ed Swaine and Sean Murphy for yesterday's Potomac Roundtable on foreign relations law at GW. It was a terrific meeting, with excellent papers from Kristina Daugirdas, Louis Fisher, and Ed Swaine - topics ranging from FSIA to war powers to Youngstown. I learned a lot - Duncan was also in attendance from Philly - and it was great...
I imagine many readers have by now seen this story in the New York Times (and Julian beats me to it!) reporting that the Obama administration appears ready to return to military commissions for trying at least some Guantamo detainees: Officials who work on the Guantánamo issue say administration lawyers have become concerned that they would face significant obstacles to trying...
The conventional wisdom is probably correct here, that David Souter's retirement won't make much of a difference to the Court's overall balance. But no two Justices are alike. There will be inevitable differences in style and approach, and on the less prominent questions, the ones mostly off the radar screen, that can lead to different votes. I don't know much...
For a while there, it looked as if there might be a real fight over Harold Koh's nomination as State Department Legal Adviser. The Republicans have been casting about for a nomination that they could defeat on some issue of principle (that is, over something not involving a nominee's tax returns), along the lines of Lani Guinier's failed nomination...
Is that even possible these days? It seems not, but the Federalist Society is sure doing a nice job in lining up Andrew McCarthy, Scott Horton, Douglas Kmiec, David Luban, Bart DePalma and Steve Vladeck to debate the recent release of the CIA interrogation memos and their content. No one has yet denounced the other in ad hominem attacks and there...
Chris Borgen and I have an op-ed in today's Philadelphia Inquirer -- you can access it here -- defending Yale Law School Dean Harold Koh's nomination to serve as the Legal Adviser to Secretary of State Hillary Clinton. Our inspiration for writing it was Rick Santorum's recent column, which suggested Harold Koh was un-American, and launched a general attack on international law having any...
Interesting item from The Economist here. It is becoming increasingly clear that any important international process or institution is going to be held to transparency norms. And where there is power, there must also be accountability. In the dispute resolution context, that takes the form of NGO participation. Why shouldn't NGOs be able to participate in proceedings with public policy...
On Tuesday, the Supreme Court decided Iran v. Elahi, a case that appears to fall within a data set of one. As I reported earlier, the case is extraordinarily complex, focusing on whether a terrorist victim judgment creditor can attach a confirmed arbitration award rendered in Iran’s favor. Although it involves exotic issues relating to international terrorism, military...
Professor Ron Slye has a helpful defense of the Koh nomination up at Foreign Policy. His post includes this very useful description of "transnational legal process" noting, importantly, that TLP is a descriptive theory of how law crosses borders. Somehow this fact has eluded much of the MSM discussion: All transnationalism does, in a nutshell, is work to describe and understand...
