General

One of the Things We Learned About Targeting

There is now a set of important new documents regarding its targeted killing operations: (1) a letter from U.S. Attorney General Eric Holder to members of Congress describing the decision to target U.S. citizen Anwar al-Aulaqi; (2) a “fact sheet” on procedures for the use of force outside areas of “active hostilities"; and (3) the transcript from the President’s speech to the National Defense University. What can we glean from them about the legality of U.S. drone operations, as opposed to what we learned from the leaked DOJ White Paper some months back? I’m still sorting it out, but for now, here’s one: Whether or not you believe the United States is in a legally recognizable transnational non-international armed conflict with Al Qaeda – a view the United States embraces but the ICRC and most U.S. allies reject – the standards announced in these documents appear intended to keep U.S. targeting operations in line with the international law of self defense.

Ratify the VCLTIO Now!

There's lots of serious international and national security talk to be had today following yesterday's NDU address by President Obama.  But, as part of my continuing quest to track international law in popular culture, I offer readers a bit of Friday afternoon levity: 9 Photos of Jennifer Lawrence that will make you Reassess the Scope of the 1986 Vienna Convention on...

Starting at the End

Far too much to say for one blog post, so I’ll start with two things I liked about the speech. First, bravo on the President for giving it. Would that he had done it years ago. Indeed, having heard it, it is even more of a puzzle why it took as long as it did. Still,...

Link to White House Fact Sheet on Use of Force Procedures

Another must-read today from the White House, a one-pager titled "Fact Sheet: U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities." Here's the link. From the introduction: [T]he President has approved, and senior members of the Executive Branch have briefed to the Congress, written policy standards and procedures that...

Link to President Obama’s Speech

An hour long as delivered, and full of substantive content. Transcript is here. ...

Weekday News Wrap: Thursday, May 23, 2013

Ahead of Barack Obama's speech on national security today, in a letter to Senator Patrick Leahy, US Attorney General Eric Holder admitted that the United States has killed four American citizens with drone strikes in Yemen and Pakistan. The British House of Commons has passed legislation for same-sex marriage; now the bill goes to the House of Lords for a vote. The...

The Case for Drones, or, My New Essay in Commentary Magazine

Noticing President Obama's big speech tomorrow at the National Defense University on US counterterrorism policy, Commentary Magazine has decided to release today my new essay, "The Case for Drones."  It will appear in the print journal in June, but has been posted with a free, open link on the website now. A couple of caveats for OJ readers, if you're inclined to read it (close relatives of mine have declined on grounds they've heard me on this too much already).  Commentary is a conservative magazine, and this is an argument for drones written with a particular audience in mind - conservative readers and Republican members of Congress in particular.  It's an argument about effectiveness and ethics, not law as such; it's an overtly politically conservative version of the much more centrist, principled, and neutral argument that, for example, Ben Wittes and I sought to make in the Oxford Union debate.  I hope that some folks still might find it useful as a thumbnail sketch in non-technical form of some of the leading arguments, objections, and replies in this debate.

Weekday News Wrap: Wednesday, May 22, 2013

Top officials from India and China met in New Delhi in an effort to ease tensions between the two countries, while a "special envoy" from North Korea visited Beijing in an effort to reinstate some diplomatic ties between the two nations. In related news, Japan has been considering restarting diplomatic talks with Pyongyang, with a focus on the abduction of Japanese...

Weekday News Wrap: Tuesday, May 21, 2013

In the latest twist on the case, Guatemala's highest court has overturned the May 10th genocide conviction against former dictator Efrain Rios Montt and reset his trial back to when a dispute broke out a month ago over who should hear the case. North Korea has released a Chinese fishing boat after having taken it from waters between the two nations. Pakistan's presumptive prime...

Weekday News Wrap: Monday, May 20, 2013

A senior Pentagon official told a Senate committee last week that the U.S. would be at war with al-Qaeda for 15 to 20 more years and said the military could target terrorists anywhere under the Authorization for Use of Military Force (AUMF) passed in 2001 after the Sept. 11 terrorist attacks. After France won some goodwill throughout Mali during the five-month offensive against...

Guest Post: Official Act Immunity – Getting the Answers Right

[Ingrid Wuerth is Professor of Law and Director of International Legal Studies at Vanderbilt University Law School.]  Yes, this is another post on foreign official immunity, prompted in part by the Fourth Circuit’s decision in Samantar.  It responds to Professor Bill Dodge’s post here and contributes to the growing blog commentary on this topic summarized in my earlier post here.  I am grateful to Opinio Juris for hosting this discussion. In this post, I focus on just one issue.  The Fourth Circuit’s decision in Samantar reasoned that jus cogens violations are not “private acts” but instead can constitute “official conduct” that comes within the scope of foreign official immunity.  Bill disagrees, arguing that conduct violating jus cogens can never be official for immunity purposes, but is instead always private.  Facts on the ground, State practice, and the purposes of immunity all suggest that the Fourth Circuit was correct. As other commentators have emphasized, the perpetrators of human rights abuses do not generally operate privately, but instead “through the position and rank they occupy.”  It is their official position which allows them to “order, instigate, or aid and abet or culpably tolerate or condone such crimes as genocide or crimes against humanity or grave breaches of the Geneva Conventions.”  (Antonio Cassese, at 868).  Thus even for many people who strongly favor accountability in international fora (like the late Professor Cassese), it is hard to view jus cogens as somehow inherently private; one might call this a flies-in-the-face-of-reality argument.  (Dapo Akande & Sangeeta Shah, at 832 (further citation omitted)).  The House of Lords itself – in an opinion directly counter to Bill’s position –rejected the argument that jus cogens violations are not official acts for immunity purposes. Jones v. Saudi Arabia ¶ 19 (Lord Bingham) (“I think it is difficult to accept that torture cannot be a governmental or official act..”) id. at ¶ 85 (rejecting “the argument that torture or some other contravention of a jus cogens cannot attract immunity ratione materiae because it cannot be an official act.”) (Lord Hoffman). What State practice does support the not-official-acts argument?