Search: self-defense
17 Feb The Treaty Supremacy Rule: Is a Partial Revival Possible?
...in international affairs might prefer such a constitutional design. However, Professor Stewart is certainly not in that camp, nor were the Founders. Third, one modern permutation of self-execution doctrine—the “no judicial enforcement” doctrine—allows state governments to impose sanctions on a criminal defendant in violation of supreme federal (treaty) law, without addressing the merits of defendant’s treaty-based defense. The Fourteenth Amendment Due Process Clause guarantees every state criminal defendant an opportunity to be heard on the merits of a federal defense to state criminal charges. Therefore, as I contend in Chapter...
11 Oct Rethinking International Law After Gaza Symposium: Unlawful Occupation as Ongoing Aggression – Rethinking Legal Responses in the Context of Palestine
...Self-Determination: The occupation must deny or obstruct the right to self-determination of the people under occupation. Hostile and Unprovoked Nature: The scale and severity of the ongoing presence in the occupied territory are both hostile and unprovoked, marked by, for instance, claims of a permanent foreign occupation, widespread loss of life, extensive destruction of property, or the displacement of vast numbers of refugees. These conditions are clearly fulfilled in the case of Israel’s occupation of Palestine, since its inception and perhaps now more than ever. The ICJ’s advisory opinion recognised...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 Sep John Yoo’s Defense of the NSA Program
I stand behind my description of Yoo, but Julian’s thoughtful post deserves a less facile response. So let’s consider Yoo’s claim about Clinton’s violation of the War Powers Act. Here is Julian’s explanation of why Yoo’s attack on Clinton is not inconsistent with his defense of Bush: His complaint about Clinton’s violation of the War Powers Act is that Clinton didn’t bother to claim that the War Powers Act is unconstitutional (in fact, according to Yoo, Clinton actually accepted the legality of the War Powers Act). Instead, Clinton simply violated...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...