In association with the International Commission of Jurists

National Security Law

15 Oct

From the government brief arguing that the media and witnesses in the 9/11 trial should not be permitted to hear the defendants describe being tortured by the US government: "Each of the accused is in the unique position of having had access to classified intelligence sources and methods," the prosecution says in court papers. "The government, like the defense, must protect...

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12 Oct

At his new blog, Derek Gregory posts the following photo, which shows American soldiers applying the "water cure" during the war in the Phillippines, which lasted from 1899-1902: Of course, not everything old is new again.  Five Army officers were convicted by courts-martial for using the "water cure" during the Phillippine War, with one reviewing authority unequivocally describing the interrogation method...

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09 Oct

I want to briefly interrupt the LJIL symposium to flag the fact that the Bond case is back on the U.S. Supreme Court's radar screen and with it the prospect that the Court may revisit one of the most canonical cases of U.S. foreign relations law: Missouri v. Holland. The facts are a bit lurid -- Carol Anne Bond discovered that her husband had...

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08 Oct

Julian beat me to Eric Posner's new Slate article on the legality of drone strikes.  I don't agree with everything in it, but I think it's notable that Posner -- echoing his sometime co-author Jack Goldsmith -- rejects the idea that international law permits self-defense against a non-state actor whenever a state is "unable or unwilling" to prevent the NSA...

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08 Oct

In his latest Slate article,  Professor Eric Posner highlights (for non-specialist readers) the  questionable international legal foundation of the Obama Administration's "drone war on terror" in Pakistan, Yemen, and elsewhere (e.g. Libya). The whole idea that the U.S. can infer Pakistan's consent to the strikes due to Pakistan's refusal to object to CIA faxes is not terribly persuasive.  I am...

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07 Oct

I'm currently writing an article for the Journal of International Criminal Justice on the legality of signature drone strikes under international humanitarian law and international human rights law.  I will link to the article when it's done (two weeks or so), but I couldn't resist posting the following quotes -- the first from the New York Times, describing the Obama...

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05 Oct

On September 19, the Supreme Court of Nevada ordered a new evidentiary hearing for Mexican national Carlos Gutierrez on his ability to overcome the State's procedural bars to further consideration of his death sentence.  I've posted a copy of the court's order here. Gutierrez was one of 51 Mexican nationals whose convictions and sentences were the subject of the ICJ's Avena decision....

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05 Oct

Over at Lawfare, I've flagged a fine new article in the Military Law Review, "The Case of the Murdering Wives: Reid v. Covert and the Complicated Question of Civilians and Courts-Martial," by Captain Brittany Warren (Vol. 212. 2012, p. 133; link goes to jagcnet.army.mil.) The article goes into fascinating detail about the actual facts and circumstances of Reid v. Covert, as well as a discussion of historical practices dating back to 17th century Britain and the application of the Articles of War to "camp followers."  It then comes back to the present to discuss the circumstances of civilians in courts-martial in US law. Let me add a comment that goes far afield of Captain Warren's article, but one raised in my mind by the detailed discussion she offers of the "murdering wives case" in its own context and time.  (I don't want to suggest that my discussion reflects her views in that article, so I've decided to make it a separate post here at OJ.)   Reid v. Covert is a case sometimes raised in a different context - one for which it is not really dead-on, however, though sometimes referenced in relation to it.  Reid is the question of the extraterritorial application of the US Constitution, and whether a civilian US citizen lawfully present on a US military base in time of peace, with a SOFA in operation (ie, 1950s Germany), is entitled to a regular US civilian trial with all Constitutional protections in a capital murder case rather than trial in military court under the UCMJ - answer, yes. But, if that's Reid, what about a US citizen who has fled the US to places not controlled in law or fact by the US, and is engaged in violent operations against the US from abroad as part of a terrorist group - is that US citizen nonetheless entitled to trial in a regular civilian court, or at least some form of judicial due process, and at least an implication that this US citizen can't be lethally targeted in the way that a non-citizen lawful target could be?
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02 Oct

As I suggested earlier, the President has ample legal authority to strike back at those responsible for the deaths of U.S. Ambassador to Libya Christopher Stevens and three other Americans in Libya. The NYT reports that the Pentagon is preparing to exercise this legal authority: The American military’s top-secret Joint Special Operations Command is preparing detailed information that could be used...

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01 Oct

I realize this should have gone to our announcements section, but it seems well worth flagging.  As OJ readers are probably aware, the Kiobel case is being re-argued today in the Supreme Court.  Tomorrow my law school, Washington College of Law, American University, in DC, is holding a post-argument discussion with some stellar folks - Paul Hoffman (lead counsel for plaintiffs), Katie Redford (Earthrights International), John Bellinger (former DOS Legal Adviser and Arnold & Porter partner), and Andrew Grossman (Heritage Foundation).  WCL's own Steve Vladeck will moderate.  The event will also be live-streamed. Tuesday, October 2, 12-1:20, lunch included, and CLE credit available.  Registration required.  The flyer with online registration information is below the fold.
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27 Sep

Benjamin Netanyahu is being suitably mocked for the Wily E. Coyote-like picture of a bomb he used at the UN to describe Israel's "red line" concerning Iran's purported efforts to build a nuclear weapon.  There's no need for me to pile on; even right-wingers are horrified, with Jeffrey Goldberg -- Jeffrey Goldberg! -- tweeting earlier today that "Netanyahu's bomb cartoon...

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21 Sep

Just in case you are not yet convinced that the Obama administration's counterterrorism policies are actually worse than the Bush administration's: The officials said U.S. Secretary of State Hillary Clinton had made the decision to remove MEK from the list, and that it was expected to be formally announced in coming days. The State Department said that Clinton sent a classified communication...

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