National Security Law

I've been swamped with various projects and distractions here in Taiwan (mostly food-related), so I didn't notice until today this very interesting Zachary Keck post about how Japan's recent decision to re-interpret its constitutional provision to allow expanded overseas military activities would enable Japan to help defend Taiwan against an attack from China.  It's a fascinating post, but it also made...

Diane Sawyer had a hard-hitting report tonight at ABC News on the recent hostilities between Israel and Palestine. The segment opens with her saying, “We take you overseas now to the rockets raining down on Israel today as Israel tried to shoot them out of the sky.” As she speaks, a video box next to her shows explosions on an urban landscape. Sawyer then...

What Israel-hating, Hamas-loving lefty said the following on Facebook? Dear friends: Take a few moments to read the following words and share them with others. I see the severe and rapid deterioration of the security situation in the territories, Jerusalem and the Triangle and I’m not surprised. Don’t be confused for a moment. This is the result of the policy conducted by...

Just a quick note for those of you who, like me, have a fondness for the Digest of U.S. Practice in International Law; the 2013 volume is now available on the State Department's website (see here).   I find the Digest to be one of the great resources on U.S. views of international law; it regularly includes letters, reports, and other documents that...

Jamie Orr has responded to my previous post on the drone memo, in which I argue that the OLC fails to adequately defend its conclusion that the CIA is just as entitled to the public-authority justification (PAJ) as the DoD. It's a thoughtful response, and I appreciate Dean Orr taking the time to write it. But I don't find his arguments convincing. Orr begins by citing Art. 43 of the...

As everyone on Twitter knows by now, the US government has released the notorious memorandum in which the OLC provides the supposed legal justification for killing Anwar al-Awlaki. I'm a bit disappointed not to get a mention in the memo; people in the know have suggested that a post I wrote in April 2010 led the OLC to substantially rewrite it. Vanity aside, though, I'm...

Most of the discussion about Abu Khattallah's capture in Libya has focused on the operation's basis -- or lack thereof -- in domestic US law. Less attention has been paid to whether international law permitted the US to use force on Libyan soil. As Marty Lederman recently noted at Just Security, Abu Khattallah's capture can potentially be justified on two different grounds:...

I'm not sure how I missed this, but these are very strong -- and atypically blunt -- allegations by Fatou Bensouda: The International Criminal Court (ICC) prosecutor Fatou Bensouda urged the United Nations Security Council (UNSC) to investigate reports that the UN peacekeeping force in Darfur (UNAMID) deliberately contributed in covering up crimes in the restive region. In reference to US-based Foreign Policy...

My co-author John Yoo and I have a piece up on Forbes today arguing that the U.S. Supreme Court missed a grand opportunity in Bond v. U.S. to place constitutional limits on the treaty power.  We take aim at Missouri v. Holland head-on.  We criticize the interpretation of the Chemical Weapons Convention Implementation Act adopted by the opinion for the Court...

Lawfare reports today on a study published in Political Science Quarterly about how ordinary Pakistanis view US drone strikes in their country. According to the post, the study "[c]hallenge[s] the conventional wisdom" that there is "deep opposition" among Pakistanis to drone strikes and that "the associated anger [i]s a major source of the country's rampant anti-Americanism." I don't have access to the...

[Chimène Keitner is Harry & Lillian Hastings Research Chair and Professor of Law at the University of California Hastings College of the Law, and an Adviser on Sovereign Immunity for the American Law Institute’s Fourth Restatement of the Foreign Relations Law of the United States.] As Duncan has pointed out, if a U.S. court sought to exercise jurisdiction over the five Chinese officials indicted by a Pennsylvania grand jury for computer fraud, identity theft, economic espionage, and trade secret theft, the officials would likely claim entitlement to foreign official immunity because they acted on behalf of China. While state action is not a required element of any of the alleged crimes, it permeates the facts of this case, which Attorney General Eric Holder emphasized “represents the first ever charges against a state actor for this type of hacking.” The Foreign Sovereign Immunities Act provides the sole basis for obtaining jurisdiction over foreign states and their agencies or instrumentalities, see 28 U.S.C. § 1604, although it remains unsettled whether the FSIA applies to criminal proceedings against entities. The FSIA does not apply to individual foreign officials, see Samantar v. Yousuf, except for the section creating a limited private right of action for state sponsored terrorism, 28 U.S.C. § 1605A(c). Rather, the immunity of current and former foreign officials is governed by applicable treaties (such as the Vienna Convention on Diplomatic Relations, implemented by the Diplomatic Relations Act) and, in the absence of a statute, the common law. As Duncan indicates and Jack Goldsmith also notes, the question of foreign official immunity will only arise as a practical matter if the Chinese defendants come within the personal jurisdiction of a U.S. court. The officials could not claim status-based immunity unless they were heads of state, diplomats, or members of special diplomatic missions at the time of the legal proceedings. Instead, they would claim conduct-based immunity on the grounds that their acts were all performed on behalf of the Chinese state. The decision to bring charges suggests that the USDOJ does not view the defendants as lawfully entitled to assert immunity for their alleged conduct. This could be for one of several reasons: