Scholars who believe that the individuals who wrote the OLC memos authorizing torture should be criminally prosecuted -- as I do -- normally cite the Justice Case, decided by the Nuremberg Military Tribunal (NMT) in 1947, for the proposition that a government lawyer can be held criminally responsible for giving erroneous legal advice to his political superiors. Last year, I...
U.S. prosecutors charged the sole surviving Somali pirate from the Maersk Alabama incident, Abduwali Muse, yesterday on charges of piracy, conspiracy to seize a ship by force, discharging a firearm during a ship seizure, conspiracy to commit hostage-taking and brandishing a firearm during a hostage taking. The list of reported charges seems to confirm Eugene Kontorovich's suggestion yesterday in a great post over at...
[Major John C. Dehn is an Assistant Professor in the Department of Law, US Military Academy, West Point, NY. He teaches International Law, and Constitutional and Military Law. He is writing in his personal capacity and his views do not necessarily represent the views of the Department of Defense, the US Army, or the US Military Academy.] First, I express my thanks...
The WSJ Editorial Page takes UN Ambassador Susan Rice to task for claiming that the recent UN Security Council "presidential statement" is legally binding on North Korea. Here is Rice's full statement on this point, I believe. Reporter: Ambassador, there seems to be some debate as to whether there’s any legally binding items in this presidential statement. We talked to one...
More evidence that the CIA interrogators did not rely in good faith on the OLC memos: Bradbury's 30 May 2005 memo acknowledges (p. 37) that the CIA Inspector General's report found that the CIA waterboarded Khalid Sheikh Mohammed 183 times in March 2003 and Abu Zubaydah 83 times in August 2002. That regime far surpasses the CIA's own internal guidelines...
[Margaret K. Lewis is a Senior Research Fellow at NYU Law School's U.S.-Asia Law Institute.] Thank you to the editors of the Virginia Journal of International Law and to Opinio Juris for providing this forum. My article grew out of work on legal reforms in Mainland China, which led to a cross-Strait project. As I learned more about Taiwan’s criminal justice...
I argued below that "good faith reliance" on OLC opinions does not justify promising CIA interrogators that they will not be prosecuted for their criminal acts. With regard to waterboarding, it is important to note that it seems clear some of the interrogators cannot even argue good faith reliance. Consider the following footnote from Bradbury's May 10, 2005, memo, discussing...
[Hari M. Osofky is Associate Professor at the Washington and Lee University School of Law] I would like to thank both the Virginia Journal of International Law and Opinio Juris for providing this forum to discuss my new article, Is Climate Change "International"?: Litigation's Diagonal Regulatory Role. I also am grateful to both J.B. Ruhl and Nathan Sayre for their thoughtful...
As with the earlier comments by Ed Swaine, I greatly appreciate Michael Ramsey’s astute observations regarding how political commitments fit into the constitutional discourse. I've endeavored to provide my initial responses to each of his suggestions below, although surely Duncan and I will build from his comments as we develop our theories going forward. We are pleased that Professor Ramsey agrees...
[Michael D. Ramsey is a Professor of Law at the University of San Diego Law School and author of “The Constitution’s Text in Foreign Affairs” (Harvard Univ. Press, 2007).] Duncan Hollis and Joshua Newcomer have written a fascinating article on an important and underappreciated topic. I agree with their basic propositions, especially that “political commitments” (as they call non-binding personal pledges...
[This post was jointly authored by Duncan Hollis and Joshua Newcomer] Ed Swaine brings his typical thoughtful (and rigorous) method to our article, and we greatly appreciate his insights, not only for engaging with our ideas but also for suggesting how we might advance them in future scholarship. Since Ed has framed his comments as questions, we’ve endeavored to provide...
Thanks to Opinio Juris for hosting this discussion and to the editors of the Virginia Journal of International Law for their discerning taste in publishing such an excellent article. Duncan Hollis (who has published widely both on the international aspects of treaties and on their domestic significance, and so is expertly situated to address this question) and Joshua Newcomer (already publishing...
