The United States has formally referred military-commission charges against Abd al-Rahim Al-Nashiri for his alleged involvement in a number of terrorist attacks between 2000 and 2002. Here is Bobby Chesney's helpful description of the charges: Charge 1: Using Treachery/Perfidy (10 USC 950t(17)) – the idea here is that the use of a civilian boat, civilian clothing, and so forth to...
Following Talisman Energy, the Fourth Circuit has now held in Aziz v. Alcolac, another ATS case, that the mens rea of aiding and abetting under the "law of nations" is intent, not knowledge. That's plainly wrong, as I have pointed out before, so there is no point dwelling on the new decision. But this paragraph deserves specific mention, because it...
One of the most remarkable aspects of how conservative U.S. scholars approach international law is their absolute certainty that the American position on extraordinarily difficult issues is always correct. Consider, for example, Jack Goldsmith's articulation today of when the UN Charter permits the U.S. to use force in self-defense against non-state actors: If the president is authorized to use force against...
As I noted in my previous post, the CMCR's opinion in al-Bahlul repeatedly cites the Nuremberg-era crime of criminal membership in defense of its belief that material support for terrorism and conspiracy qualify as war crimes. I continue to believe that the best counter-arguments to that idea are (1) that criminal membership was not a war crime at Nuremberg (the...
I've received a number of emails arguing that I do not take seriously enough the CMCR's analogy between conspiracy and the crime of membership in a criminal organization. The obvious response is that: (1) criminal membership is not a war crime; (2) the elements of conspiracy and criminal membership are completely different; (3) the tribunals on which the CMCR relied...
Even I thought the Court of Military Commission Review couldn't reach such an absurd conclusion. I was wrong: The Government has made a “substantial showing" that the conduct alleged, including appellant’s (an AUEC’s) agreement with bin Laden and others to commit the object offenses, with knowledge of and intent to further the unlawful purposes of that agreement, and commission of the...
David Bosco has an essay at Foreign Policy arguing that the current financial and security crises, rather than weakening international intitutions, are strengthening them. In short, there are so few options, that leaders are turning to international organizations and relying on them. But there may also be a more fundamental shift that is occurring in international economic policymaking: ...
How could I have missed this? According the Guardian: The principality of Liechtenstein has decided to make itself available to private clients, from $70,000 (£43,000) a night, complete with customised street signs and temporary currency...
Read the Harry Potter books and/or seen all the movies? Concerned about the post-conflict issues after the end of the War with Osama bin Laden Voldemort? The folks at Foreign Policy have got your back, tying together recent articles on post-conflict studies with the Harry Potter universe. (Warning: Spoilers!) Who knew Hogsmeade and Kandahar could have so much in common?...
Or so it would seem, based on this analysis from the European Center for Law and Justice, a right-leaning public interest law firm. A proposed new law in Poland appears to ban abortion under any circumstance, thus replacing the current law, which allows exemptions for the mother's health and for cases of rape and incest. If, as the ECLJ argues,...
So I leave the country and the blogosphere for a few months, and what happens? (Well, beside that "war" in Libya), circuit courts have gone all negative on my argument against corporate liability under the Alien Tort Statute. In addition to the D.C. Circuit's recent decision, the Seventh Circuit (speaking through Judge Posner) went out of its way to reject...
[This post is part of the Second Harvard International Law Journal/Opinio Juris Symposium.] In 2007, I authored two papers -- one for a military audience and another for a legal one -- arguing that debates over the law's response to the growing range of cyberthreats would likely track ongoing debates over law's response to terrorism. In that context, we've seen 4 options...
