Search: self-defense
07 Sep Syria Insta-Symposium: Geoff Corn–The President, Congress, Syria: What If?
...even its nationals abroad, any one of which falls much more firmly within the scope of presidential authority. Why not? Because he knows his asserted causus belli for attacking Syria falls outside the scope of national self-defense or the defense or rescue of U.S. nationals abroad. Instead, it is a broad protection of ‘national security’ interests that ostensibly triggers inherent Article II war initiation authority. This broad assertion of unilateral executive war making authority is unsupported by either historic practice or generally accepted interpretations of Article II powers. Indeed, if...04 Jun Targeted Killings Symposium: Jens David Ohlin Responds to Craig Martin
...(as US in Afghanistan after 2002 against the Taliban and AlQaeda and Iraq) while an NIAC would be like Yemen with consent against the AQ types or Afghanistan after Karzai had effective control consent against the Taliban and AQ. Pakistan is an NIAC in this setting though the lack of consent for the OBL raid (a very big deal for Pakistan) might be justified by the US as self-defense, but also might trigger Pakistan self-defense under Article 51. Subsequent events would not appear to have taken us over the threshold...29 Sep The Invention of the Khorasan Group and Non-Imminent Imminence
entitled to act in self-defence against “bad dudes” no matter when — or even if — those “bad dudes” might launch an armed attack against the US. This isn’t even the Bush administration’s “anticipatory self-defence.” This is, for lack of a better expression, “hypothetical self-defence.” Apparently, the US government believes it is entitled to use force against a non-state actor anywhere in the world as long as it can imagine a future state of affairs in which that actor would attack it. The mind — and international law — reels....01 Sep Syria Insta-Symposium: Marty Lederman Part I–The Constitution, the Charter, and Their Intersection
...which self-defense and protection of U.S. nationals have been the most commonly invoked; and (ii) the operation cannot be anticipated to be “sufficiently extensive in ‘nature, scope, and duration’ to constitute a ‘war’ requiring prior specific congressional approval under the Declaration of War Clause,” a standard that generally will be satisfied “only by prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period” (quoting from the Libya opinion). Largely for reasons explained by my colleague and Dean, Bill Treanor, I am...08 Feb Why I Disagree with Marty Lederman About Prosecuting Waterboarders
...the relevant law. Any other interpretation of the defense — most relevantly, that relying on an official statement made by the appropriate public officer or body is per se reasonable — renders the word “reasonable” completely superfluous. Reliance itself would be enough to invoke the defense. Differently put, the reasonableness requirement in entrapment by estoppel only makes sense if we leave open the possibility — however slight — that reliance on official advice can be unreasonable no matter how authoritative the public officer or body that issues it. Lederman, however,...02 Jun Case of the Month: United States v. Juvenile Male 1
...deny the power of Congress to legislate over Indian affairs or to curtail the scope of Indian self-government. But the Court declared that Congress had not done so in any clear fashion and thus found no congressional intent to limit Indian self-government. The Court stated that the tribes retained their right of "self-government [and] the maintenance of order and peace among their own members." Unless this power is limited by explicit legislation or surrendered by the tribe, Indian tribes retain exclusive judicial jurisdiction over reservation Indian affairs. Thus today most...
09 Jun A Not So Clean Break: ICC Jurisdiction after Withdrawal in The Prosecutor v. Duterte
...statutory provisions. Even if preliminary examination were to constitute a “matter under consideration,” the Defense maintained, it would have no bearing on the question of whether the Court could open an investigation post-withdrawal under article 12, as the Defense contested an applicable linkage between 12 and 127. Finally, the Defense contested the finding that the object and purpose of the Statute permitted the authorization of an investigation post-withdrawal, arguing that the object and purpose of the Statute is served by the one-year period between notification of withdrawal and its effect...24 Jan Appellate Jurisdiction Over Political Questions
...one person alone but from the rule of law itself. There are only two conditions in which a war is legal under international law: when force is authorized by the United Nations Security Council or when the use of force is an act of national self-defense and survival. The U.N. Charter, based on the Nuremberg Principles, prohibits war "as an instrument of policy." And the war in Iraq is just that — a war of choice. There is a common tendency among lawyers and military commanders to sneer at international...25 Feb Drones as Strategic Airpower and the Light Cavalry?
...piece from me next week arguing something I’ve developed at Volokh Conspiracy and here at OJ blog: first, that the administration’s lawyers need to step up to the plate and defend targeted killing using Predators and, second, the proper legal basis on which to defend it to the full extent undertaken by the Obama administration is the international law of self-defense, rather than simply the law of armed conflict, targeting combatants. In another piece coming soon (this one a book chapter in a Hoover Institution online collection of essays from...