In association with the International Commission of Jurists

Author: Kenneth Anderson

25 Feb

David Rittgers, a Cato legal analyst and former Special Forces officer, has an excellent op-ed in today’s Wall Street Journal on the use of Predator drones.  He cautions, on the one hand, against reflexively regarding drone attacks as nonjudicial execution or, really, functionally different from other weapons that soldiers might use — as well as cautioning against the idea that Congress or courts could somehow micromanage the use of these weapons.  On the other hand, he cautions against thinking that the problem of drones is that the US should be seeking to capture rather than kill because of the loss of intelligence; he notes that operationally, there are many reasons why capture is very often infeasible.  It’s a good piece, measured and sensible, and I highly recommend it. I’ve been quiet around here in the last little while as I, too, have been writing about Predators and targeted killing — expanding and moving beyond my book chapter from last year  on this topic.  Barring some big news on health care or some such, the Weekly Standard will be running a 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.
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19 Feb

Julian mentioned, in his first post on Sarah Cleveland's UVA talk below, that Harold Koh, legal adviser to State, held an informal public discussion with his predecessor from the Bush administration, John Bellinger.  This was an ASIL event, held at John's law firm, Arnold & Porter, and moderated by my old friend and ASIL's Treasurer, Nancy Perkins, also of Arnold & Porter.  CSPAN covered it, and the video is now available:  The Obama Administration and International Law, February 17, 2010.  (If I can find a youtube version from ASIL, I'll see if I can embed it.) I was teaching and so could not attend in person, but I have now watched the video and it is a terrific event.  My public thanks to Harold Koh, John Bellinger, and Nancy Perkins for doing it. It's a good thing for an administration's senior lawyers, who have a difficult task of both setting out legal policies and often highly abstract and complicated legal arguments - and at the same time communicating them to the public, in part the professionals and lawyers and diplomats, but also to a broader public.  While John was adviser, he experimented with entirely new avenues of discussion and communication, including a guest blogging appearance here at OJ that was very well received.  Harold Koh has also been doing some out of the box engagements, and this kind of unscripted, informal discussion is an outstanding example of that. (One note I would add is that a very great virtue of this kind of unscripted event is that it is informal, and not every word, phrase, and utterance has been vetted and run through the law-machine for alternative interpretations, and so on.  So although I strongly urge everyone to watch the video closely, I believe equally strongly that one has to adopt a charitable interpretation of what the speaker intends, and not focus on individual words or phrases that, in a formal speech or court filing or testimony, might be far more carefully - but less informatively - phrased.  So, for example, when Justices Breyer and Scalia held a discussion at my law school a few years ago on constitutional comparativism, in writing about it, I declined to quote them directly, preferring to paraphrase, precisely because I thought direct quotation was a disservice to the informal spirit of the occasion.  To hammer on precise words in impromptu settings simply causes lawyers to be ever more circumspect and less forthcoming, and to limit their statements to much less useful formal occasions.) The conversation ranged across a wide variety of issues, including something that Julian flagged below with respect to Sarah Cleveland's UVA speech - the pace of treaty exchanges.  John flags Dean Koh on that issue, saying (my summary) that in 2007-2008, the State Department got the Senate to approve more treaties (90!) than at any point in American history.  On the broad question of whether the Obama administration's international law policies represent continuity or change, Dean Koh suggested somewhat wryly that to the extent that the old policies were good ones, they were being continued, and to the extent they weren't, they were being changed.  But Dean Koh also pressed the general theme that the Obama administration inherited policies, practical as well as legal, from the previous administration and turning on a dime wasn't very easy.
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16 Feb

Not everyone in international law is quite so fascinated as I with CDS spreads on Greek sovereign debt.  However, the issues raised by the Greek debt difficulties and the urgent discussions in the Eurozone over a possible bailout, attendant moral hazard, and the like are far more than merely fiscal or monetary questions.  Rather, this crisis is one of those...

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10 Feb

Last Thursday, February 4, the Lieber Society of the ASIL (the laws of war interest section) sponsored a program at ASIL's Tillar House in DC to discuss the draft model manual on air and missile warfare that has been slowly evolving through the "Alabama process" and the International Humanitarian Law Research Initiative based at Harvard University.  Claude Bruderlein, director of...

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30 Jan

A note to our readers:  I inadvertently jumped the gun a bit in my earlier post about the Security Council and raised Professor Michael Glennon's YJIL article, The Blank Prose Crime of Aggression, on which Kevin has also commented.  We imagine that some readers will also want to weigh in.  It turns out that in March, we will be discussing...

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29 Jan

As we get closer to the review conference on the ICC, many of us have been watching, and perhaps commenting on, ways in which the US might or might not take part as an observer.  It seems certain that the US will be an observer at the review conference, and the primary issue on the table for the conference is the crime of aggression.  My own view of this is that the whole effort is a mistake - essentially for the reasons that Michael Glennon lays out in his fine new Yale International Law Journal article, The Blank Prose Crime of Aggression.  However, as I remark at the end of this post, whatever one's prescriptive views, descriptively the effort appears to raise questions about "contracting around" the Security Council in a changing world but un-amendable UN.
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22 Jan

Anyone doing serious work on detention, Guantanamo, war on terror, any of these areas, will want to read an extraordinary new study just out from the Brookings Institution by Benjamin Wittes, Robert Chesney, and Rabea Benhalim, The Emerging Law of Detention: The Guantanamo Habeas Cases as Lawmaking.  (I’ve given the SSRN free download link; here is a short NPR piece on it with legal affairs correspondent Ari Shapiro.) No matter what your particular legal viewpoint about detention and Guantanamo, I believe this report will be required reading because of the sheer breadth and depth of its analysis — running to all the extant cases.  Ben Wittes is a leading scholar at Brookings in this area and UTexas’s Bobby Chesney is both a leading scholar, and also someone who took on Most Thankless But Important Job in conducting a major review for the Obama administration on detention policy.  Rabea Benhalim is a Brookings Institution Legal Fellow in Governance Studies. I went to Ben and Bobby, and asked if they would give me a guest post on the background to this report and their purposes in researching and writing it, and I would like to thank them for the short response below (cross posted to Volokh): Guest post from Benjamin Wittes, Robert Chesney, and Rabea Benhalim:
President Obama’s decision not to seek additional legislative authority for detentions at Guantánamo Bay, Cuba—combined with Congress’s lack of interest in the task—means that, for good or for ill, judges through their exercise of habeas jurisdiction are writing the substantive and procedural rules governing military detention of terrorist suspects.  Our purpose in this report is to describe in detail and analyze the courts’ work to date—and thus map the contours of the nascent law of military detention that is emerging from it.
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21 Jan

If you are in the DC area on Monday, January 25, you might want to check out this event at ASIL Tillar House, 2:30-5:00 pm.  This looks to be a terrific discussion with great people on the program.  "Mind the Gap: International Human Rights Law and the Law of Armed Conflict," with Gabriella Blum and Geoffrey Corn as discussants, and...

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21 Jan

(I put this as a comment below, but have decided to move it up as a post, with a question for Professor Klabbers.) What a fascinating post - thanks for being with us on OJ!  I have two reactions that seem, on the surface, perhaps contradictory - but perhaps they are not. On the one hand, the idea of gradations of sovereignty...

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08 Jan

The National Journal has a two part cover story, January 9, 2010, on Predator drone strikes — required reading for those following the targeted killing and Predator drone developments, and although it is behind a subscription wall, no question that this National Journal issue is making the rounds of Washington and the agencies.  If you follow this topic, you’ll want...

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29 Dec

A couple of years ago I wrote a paper on ways in which the American political class is riven by deep foundational disagreements about the proper way to approach transnational terrorism.  It is partly implicated in the “war” versus “law enforcement” argument, but actually it goes deeper than that — is it possible to have an offensive strategy against terrorism,...

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