Thanks for the detailed reply, Ben – already enjoying this discussion. I’ll leave it to Marty and his own considerable blogging skills to discuss his views about the role of Congress. Let me get back to you for now about the courts. You write that you are “deeply disquieted by any substantial role for judges in the design of...
Deborah's and Marty's challenging posts throw down the gauntlet in a number of important areas. To keep this response at a reasonable length, I'm going to boil their points down to five broad arguments. I'm not trying, in doing so, to dodge or elide their other points; consider this as a first pass at a response. I'm happy to swing back...
As usual, I agree with much of what Marty says, especially Marty's suggestion that he is almost inclined to say that this is the single volume to read to find out where we are and where we've been (query whether the same might also be said about Jane Mayer's new book, but more on that later). Marty is also right,...
I will address later this morning the raft of issues raised by Deborah's and Marty's posts. I want, however, to briefly clarify a point that has become a little bit muddy as to my view of whether America is really at war. Several posts seem to take it as a given that I am arguing for a war model in the...
My apologies for implying that Ben is a neoconservative, but I think that the title of my last post -- "Damning International Tribunals With Faint Praise" -- is accurate. Stray or not, Ben's comment praises the international tribunals for (ostensibly) not offering defendants the same kinds of protections that defendants enjoy in U.S. civilian courts. The belief that the Rome...
Thanks so much to the Opinio Juris folks for the opportunity to participate in this wonderful symposium. Ben's book truly is indispensable -- a must-read for all those interested in these important topics. In particular, Ben's descriptions of the difficult questions, and his narrative of how we got to this unfortunate point with respect to many of them,...
In a similar vein as Peter and Peggy before me, I want to mine two of Ben's premises: that we are in a new kind of war and that this needs a new kind of law. I do agree in part with Ben on each of these-- I think we are facing conflict of a different sort than we have before and I also think...
Peggy and Peter, with slightly different emphases, both criticize me for focusing too narrowly on domestic legal policy. As Peggy puts it, by doing so, I "implicitly endorse the notion that the U.S. is unique in its experience of terrorism and the challenge of crafting laws to address it." It's a point worth addressing explicitly. The United States is not the first...
First, thanks to all for the great opening posts, and more broadly to Chris, Peggy, and the whole Opinio Juris crew for welcoming me into the fold. I’m delighted to join such a dynamic forum, and very much look forward to our exchanges ahead. Ben suggests as a central topic to kick of this week’s discussion a broad structural question: “Does...
I'm not surprised that Ben (as one of the new foreign policy pragmatists) says he's amenable to international law as part of an anti-terror answer (assuming that that a legal fix of any description is necessary -- I hope we'll hear from Deborah Pearlstein with her argument that we don't need to change international law, either). But it's...
I had planned to lurk on the sidelines until the discussion of Ben's fascinating book moved to the "need" for a new interrogation statute -- I, for one, am more than happy to have "interrogation laws that operate only at the highest altitude (nothing cruel or inhumane, nothing that causes severe pain or suffering) but never come down to earth,"...
Thanks to Chris and his colleagues at OJ for giving me an opportunity to participate in this important discussion. Today we're focused on broad premises underlying the book, and in particular the utility of using the concept of war in connection with counterterrorism policy. Peggy's most recent post critiques the Bush Administration's emphasis on the war model, concluding that "the framing of...
