General

New Executive Order on Guantanamo

The President's much-anticipated executive order on Guantanamo was released today. I hope to read and comment on it shortly (not to mention figure out how to post a PDF). In the meantime, the press statement is here. It reads in its entirety as follows: Statement by President Barack Obama: “From the beginning of my Administration, the United States has...

Humanitarian Intervention in Libya: Follow-up Post

A few days ago, I asked the question (here), what are the best legal arguments that would permit or preclude military intervention in Libya, by the US or some other party or parties, on humanitarian grounds (other than rescue of one’s own nationals)?  The question generated an illuminating array of responses, which I wanted to categorize and expand upon here, but starting with some observations on the law and politics of US policy on intervention, as touching on Libya and beyond.  (ps.  Also check out Jack Goldsmith's discussion of US domestic law and intervention at Lawfare.) I.  Intra-USG Politics So far as I can tell as an outsider to government, the appetite inside the administration, DOD, DOS, or anywhere else where I’ve been able to glean, for any military action on the ground is way, way, way less than zero.  Since that almost certainly mirrors US public opinion, that is not a surprise. But even limited to air action, my personal impression, fwiw, is that the appetite inside the administration to try and undertake a no-fly zone, by ourselves or in coalition, is also zero. The military is deeply opposed (and not just Gates).  I’ve informally spoken with a number of officer friends who think the US trying to do this, whether alone or with the blessing/participation of other parties — including, interestingly, even if blessed by the Security Council — is prudentially a terrible idea.    The idea of the US involved militarily in conflict in yet another Muslim country seems to them a very bad idea, resources are already stretched thin, and no fly zones lead to many unpredictable and unanticipated entanglements. Calls to create a no-fly zone have been expressed loudly by Republicans and “revived” neoconservatives; the Wall Street Journal has an editorial calling for exactly that this morning. As widely noted, it has revived a sharp debate over Bush-era neoconservative foreign policy idealism, grounded in pressing for democracy and liberty for the Middle East.  It is a position long ridiculed by conventionally realist conservatives including George Will, but more importantly also attacked by what I have sometimes called the Obama administration’s “New Liberal Realists.” (I explain these categories in more detail in a long review essay, “Goodbye to all that? A requiem for neoconservatism.”) There have been some calls for the creation of a no-fly zone by liberal American foreign policy idealists, notably former Obama administration DOS official, Anne-Marie Slaughter — now out of the administration and back at Princeton (and of course her views on this are evolving with the situation; this should not be taken as necessarily her last word). I am no expert on Libya and express no view at this point on the prudential or strategic aspect of this.  However, the most striking comment I’ve heard came from a military officer who (like numbers of officers I’ve known) has always been skeptical of the CIA using force, including Predators in targeted killing.  This officer said to me, somewhat tongue in cheek, but somewhat not:  “Where’s the CIA?  Isn’t this what we’ve got a CIA for?  Isn’t this what you think the CIA is supposed to do?  Covert or at least deniable ops? Why don’t they go support the rebels and not pull us into an overt conflict?”

Knowledge vs. Wisdom: The Sad Case of Karin Calvo-Goller

“Karin Calvo-Goller has undoubtedly invested much time and effort into this book, which – but for regrettably sloppy editing – might well serve as a first systematic introduction to the procedural issues confronting the ICC. What is still missing is a book that might help to resolve these issues.” It’s not the best book review one could hope for, but neither...

Bellinger on Avena Implementing Legislation

Almost three years have passed since the Supreme Court's decision in Medellin v. Texas. The only remaining avenue to overturn Medellin and make the ICJ's decision in Avena (holding that the US violated its obligations under the Consular Convention and ordering review of the cases) binding as domestic law -- a federal statute -- has not been passed.  Former State...

What Are the Best Legal Arguments For and Against Military Intervention in Libya?

Question to OJ readers.  Suppose that you were the chief legal advisor to the US DOS, or to the UK foreign minister, or to NATO, or some country or coalition in which there is active discussion about armed intervention on humanitarian grounds in Libya, for the express purpose of preventing attacks upon the civilian population.  What would you regard as the best...

Libya: Did Citizen Evacuations Stand in the Way of Better Policy?

It now seems to be the conventional wisdom (hard to shake once in place) that the U.S. has been slow off the mark on Libya.  That may have consequences for U.S. standing in the region.  As long-time Middle East hand Aaron David Miller put it in a tweet this morning: "the arab spring isn't mainly our story; but president obama...

Conceptualizing Accountability in International Law and Institutions

I had the privilege of moderating a panel today at the Yale International Law Journal annual confab of junior (meaning untenured?) scholars, a panel on accountability of international organizations.  International organizations in this setting means the United Nations, but also a vast array of organizations beyond what we ordinarily think of as the UN (the General Assembly, Security Council, Secretariat, etc.), including many organs and sub-organizations of the UN, and many others, such as the World Bank or the World Trade Organization, that might be in some formal sense part of institutions the UN system but which in fact have their own mechanisms of governance and funding.  The three panelists were Kristin Boon (Seton Hall), David Gartner (Arizona), and Stadler Trengrove (UN Office of Legal Counsel), and their remarks were uniformly excellent, and I commend their work to you. I I am a skeptic of global governance on grounds of being both unachievable on the terms and to the ends that its proponents seek, and undesirable as well, so I am perhaps a surprising choice to moderate a panel that takes more or less as an assumption both of those things.  I am finishing the copy edits of a book to appear in May or June from Hoover Press, Living with the UN, which includes such phrases as “The General Assembly, which vascillates between waste and wickedness ...”  You catch my drift.  My basic point in that book, however, is the message to American conservatives that the UN is not going anywhere and they need to work that into their calculations, principally by turning the vacuous slogan of the Obama administration of  “engagement” with anything that looks “multilateral” into a genuine policy.  Principally that means treating different parts of the UN differently, and engaging with them, or not, or sometimes deeply opposing and obstructing them, each according to its function and effects.

ICCPR and IHL

Bobby Chesney and Human Rights First's Daphne Eviatar debate the extent to which the ICCPR applies in Afghanistan and, in important matters, in regimes of IHL.  The back and forth at Lawfare is well worth reading. Let me be distressingly candid.  This is an area in which I find it difficult to get "inside" the legal debate because I find it...

Will Anyone Publish Saif Gaddafi’s Book on Civil Society?

We already knew that Muammar scion Saif Gaddafi had written a dissertation at LSE entitled “The Role of Civil Society in the Democratisation of Global Governance Institutions: From Soft Power to Collective Decision Making?” But I didn't know that it was slated to be published by Oxford University Press.  This at HuffPo from Ben Barber (who, ahem, knows something about...

The “Libya and Humanitarian Intervention” Meme

"Libya"and "humanitarian intervention" are being used more and more often in the same sentence.  Over at Ratio Juris, Patrick O'Donnell has a round-up of  blog posts and opinion pieces concerning humanitarian intervention and the situation in Libya. Patrick's post is especially helpful for anyone trying to get up to speed on this issue as it includes a bibliography on humanitarian intervention, more...

Event on Miranda and Terrorist Suspects

In case any one finds themselves in/around Philadelphia on March 5, this event may be of interest: Supreme Court litigators Carter G. Phillips and Kannon Shanmugam will argue a case based on hypothetical federal legislation that exempts police from issuing Miranda warnings to individuals suspected of terrorism. A jury of nine distinguished judges will decide if such legislation can withstand constitutional...

Orin Kerr on the Strange Fourth Amendment Case of Ashcroft v. Al-Kidd

Orin Kerr is the Fourth Amendment scholar that I definitely am not, so I read with interest his Volokh post this morning on Ashcroft v. Al-Kidd, which the Supreme Court will be hearing next week.  He says it is a strange case for a couple of reasons.  The two basic issues in the case are: First, whether using the material witness...