In association with the International Commission of Jurists

Foreign Relations Law

28 Sep

Ben Wittes at Lawfare and Adam Serwer at TAPPED traded posts today on the government's motion to dismiss the ACLU/CCR lawsuit.  I think the exchange -- particularly Wittes' response to Serwer -- illustrates perfectly why discussions about national security between conservatives and progressives always seem to have a Pinteresque quality.  Here is the point to which Wittes responded: I think it's...

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25 Sep

The Obama administration recently filed its motion to dismiss the ACLU/CCR lawsuit that seeks to enjoin the government from using lethal force against Anwar al-Aulaqi.  Predictably, the motion relies on a potpourri of reasons why no court should ever review the lawfulness of Obama's determination that an American citizen abroad should be summarily executed, including everyone's favorite "state secrets" privilege. ...

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25 Sep

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...

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16 Sep

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...

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12 Sep

Something that our European readers have already probably heard as it is one of the most viewed stories on the BBC website (but not so much here in the U.S.), the Basque separatist terrorist organization ETA has renounced (at least for now) the use of violence:  Armed Basque separatist group Eta says it will not carry out "armed actions" in its campaign for...

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07 Sep

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...

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07 Sep

I've got a new draft article on cyberthreats (you can download it at SSRN here).  I'd planned to wait before blogging about it, but events have overtaken my plans since Orin Kerr and Dave Hoffman are already discussing my ideas over at Concurring Opinions.  So, let me offer some responses to their questions here, and in the process explain (a) why some...

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06 Sep

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...

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06 Sep

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...

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05 Sep

Via BLDGBLOG and Pruned (1, 2), here are two suggestions that are not so much literal proposals but rather thought experiments, each meant to prod the viewer. (And a third one from me.) The first is one of the winners of SeaChange 2030+, an "ideas competition" sponsored by the Australian Institute of Landscape Architects with the goal of addressing the effects of...

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