Bobby Chesney has graciously responded at Lawfare to my post about detention in non-international armed confilct (NIAC). Unfortunately, I think Chesney's response not only misconstrues what Steve Vladeck and I have been arguing, but also demonstrates some important misconceptions about IHL. To begin with, we need to understand exactly what we are arguing about. As Steve pointed out in one of...
The following is a guest post from Chimene Keitner, Associate Professor of Law at Hastings. My thanks to her for contributing it! The Second Circuit’s recent panel opinion in Kiobel v. Royal Dutch Petroleum has justifiably spurred much talk in the blogosphere, including posts by Trey Childress, Ken Anderson, Julian Ku, and Kevin Jon Heller. Here are my preliminary thoughts. First, it...
Steve Vladeck has been having a fascinating debate with Ben Wittes and Bobby Chesney about the merits -- or lack thereof -- of Sen. Lindsey Graham's proposed "Terrorist Detention Review Reform Act," which Wittes and Chesney support and Steve opposes. Steve doesn't need my help in the debate, which I think he's clearly winning. But I couldn't let one point...
It's always dangerous to opine on a judgment you have only skimmed, so I'll phrase my thought as a question instead. Here is what the ATS Statute says: The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the...
Ben Wittes has a post at Lawfare today discussing ways in which the Obama administration might be able to avoid litigating the ACLU/CCR lawsuit challenging Al-Aulaqi's targeting. One of his preferred responses is the "political question" doctrine; in his view, "enemy targeting" is a classic example of a political question with which the judiciary should not interfere. I would not be...
Reading a justifiably nasty review of Meghan McCain's Dirty, Sexy Politics, I came across this unintentionally funny gem: The most obvious problem with Dirty, Sexy Politics is that grammatically, the book appears to be the work of a high school sophomore. To be more accurate, it appears to be the first draft of an essay written...
Gerald Steinberg, the head of right-wing propaganda outlet NGO Monitor, is not happy about George Soros' recent $100 million gift to Human Rights Watch: In accepting a huge grant from George Soros, Human Rights Watch has spurned the public advice (and warning) offered nearly a year ago by its founder Robert Bernstein. Rather than grapple with the serious...
I have no desire to have the final word with Ken. But I would like answers to two questions. First, where does Melzer or the ICRC say that armed conflict is a geographically-bounded concept, such that a participant in an armed conflict ceases to be targetable as soon as he leaves the battlefield? I cited pages in Melzer's book on targeted...
Thanks to the independence of two independents -- Tony Windsor and Rob Oakeshott, who come from conservative electorates. That, my friends, is putting the good of the country ahead of short-term political interest. Go Julia! And thank you, Tony and Rob, for sparing us from three years of Tony Abbott....
I have no idea why Ken posted his thoughts on the Washington Post editorial only at Volokh Conspiracy, but I wanted to respond to his post, because I think it is based on a critical misapprehension of the laws of war. Here are the relevant paragraphs (my emphasis): [G]oing to the geographic definition of war as a legal concept. This idea...
Ben Wittes calls attention today to a Washington Post editorial defending the targeted killing of American citizens like Al-Aulaqi: [W]hen a target is hiding in a lawless state or in one which refuses to cooperate in his apprehension, other alternatives must be considered, including targeted strikes. The decision to target an American must be a last resort, used...
Julian noted a couple of days ago that the ACLU and Center for Constitutional Rights have challenged the Obama administration's "asserted authority to carry out ‘targeted killings’ of U.S. citizens suspected of terrorism far from any field of armed conflict.” The lawsuit claims, inter alia, that such killings violate the due-process rights of the targeted citizens. As Anthony Romero...
