Search: self-defense

20 May Dave Glazier on the Wall Street Journal on Gitmo Defense Attorneys

Over at National Security Advisors, our colleague Dave Glazier has a superb post on whether the Gitmo defense attorneys are responsible for the ills of the military commissions, as the Wall Street Journal‘s far-right editorial page seems to believe. Here’s the intro: The Wall Street Journal published a scathing editorial today blasting the military and civilian defense attorneys it portrays as unreasonably obstructing the capital military commission prosecutions of high value terrorists, including alleged 9/11 mastermind Khalid Sheikh Mohammed (KSM). It is not surprising that a paper noted for its...

19 Jan Will Bond v. United States Matter?

...argues here). Having said all that, a favorable decision for the petitioners in Bond could still have a practical impact by reviving that almost extinct constitutional creature: the self-executing treaty. The President and Senate, at least in the past few decades, have very rarely approved self-executing treaties outside of a few subject matter areas (like taxes, extradition, and investment). Big important treaties, such as human rights treaties, have generally been approved on the condition they are non-self-executing. (Go ahead, name the most important self-executing treaty of the past thirty years....

11 Apr Executive Federalism (a.k.a. Semi-Shameless Self Promotion)

...the treaty power’s scope and devised its own mechanisms for accommodating federalism in U.S. treaties. To date, however, scholars have largely ignored the Executive’s efforts to self-judge when and how federalism limits U.S. treaty-making–efforts that I label “Executive Federalism.” But Executive Federalism has significant domestic and international ramifications. First, it requires rethinking federalism’s nature by demonstrating that federalism need not function solely as a judicial or legislative safeguard for states’ rights. Second, while it serves as a vehicle for Executive self-restraint, Executive Federalism still has structural implications, weakening the authority...

03 May How Should the OBL Operation be Characterized?

described by Jordan Paust. This is significant because it represents the use of Article 51 self-defense against non-state actors. While the ICJ’s opinions in the Palestinian Wall case and Congo v. Uganda both called into question whether Article 51 self-defense can support the use of force against non-state actors, the separate opinions of Judges Simma and Kooijmans recognized that in a post-9/11 world containing failed states, state practice strongly supports the view that an expansive reading of Article 51 to include non-state actors is appropriate. Sunday’s operation was another example...

14 Apr The Koh Speech and Targeting an American Citizen

...self-defense apart from armed conflict, as a basis for targeting (and agreeing here with Serwer, including targeting Americans), is simultaneously a break with Bush administration policy (even while, in one sense, broadening it), and a re-affirmation of a legal policy going back to the Reagan-Bush years. The self-defense assertion is important, and intellectually engaging, precisely because it is not the ground on which the Bush administration claimed its ability to target people. For the Bush administration, it was always armed conflict, global and plenary; for the Obama administration, it allows...

15 Dec The President’s Report on the Legal and Policy Frameworks

...other opportunities to undertake effective action in self-defense that may be expected to cause less serious collateral injury, loss or damage.” (p. 9) (2) State A need not obtain the consent of State B to use force on the territory of State B if State A is using force against a non-state armed group that poses an actual or imminent threat of armed attack against State A if State B is “unwilling or unable to confront effectively” the non-state actor in its territory. A state is most clearly “unable,” according...

24 Jan All You Ever Wanted to Know About the Treaty Power and Federalism, But Were Afraid to Ask*

...a powerful argument on this front (at least to me): If a self-executing treaty can exceed Congress’ Article I powers, than why not a statute implementing that same treaty? What is the structural logic of this result? For this reason, I associate myself with Professor Curtis Bradley’s view that it makes sense to read a federalism limitation on the self-executing effects of a treaty as well. That question was the subject of Missouri’s main holding, and that holding is also troubling and suspect. I understand that the arguments for limiting...

04 Jun Why International Law Can’t Resolve the Legality of the Gaza Blockade

...the aid from the flotilla? If Hamas does not see the humanitarian crisis as great enough to stop its violence, how is Israel supposed to see it as great enough to risk more of it? I'm not a spokesperson for Israel, but at the end of the day if Israel is finding itself increasingly isolated for exercising its rights to self-defense, better to be isolated than obliterated as per the Hamas Charter. Aaron Levitt I would like to see a serious reply to Zak's question, which addresses an issue that...

17 Feb Europe’s Newest State (?)

...Kosovo. Chris Borgen Corina: Thank you for your comments. I will analyze the legal rationale in a post later this week. Amin Ghanbari Now it has been just expectable to see any state of a federal system self determine it self in the light of the Post-Cold war era evolutions of international law and specially the general practice of other states concerning the issue of the right of self determination; but there is a question left unseen about people who are non members of a federal state, hopeful to self...

07 Sep Why Congress Can Override the Supreme Court’s Interpretation of International Law

...previous law or treaty forbids. On a related note, is legislation which forecloses judicial application of preexisting and otherwise self executing treaties constitutional? A treaty is either self-executing and directly applicable or not. One may argue that the intent of the executive and of the Senate (as well the language of the treaty) have a bearing on whether the treaty is self executing but shouldnt' that be restricted to the intent at the time the treaty was negotiated and ratified. Once a treaty is deemed self-executing and directly applicable can...