Earlier this week, Harold Koh gave a speech. And it wasn't about conflicts, drones, or cyberwar, topics that have dominated the attention of international lawyers in recent years. Rather, Koh's speech was a meditation on the processes of international law-making that confront the State Department on a daily basis. It was, simply put, a survey of the current international legal landscape...
As Peter's post yesterday noted, there's a growing push to fundamentally re-align cyberspace governance via amendments to the ITU Regulations, which are set to be negotiated in December in Dubai. I'm not sure that the ITU is up to the task. But I do agree that the time is ripe for States and other stakeholders to agree on first principles...
Jack Goldsmith offers five thoughts today at Lawfare about the D.C. Circuit's Hamdan II decision. I agree with two of his thoughts -- that the government is free to rely in future prosecutions on alternatives to material support (MST) such as aiding and abetting terrorism, and that (sadly) al-Bahlul could be detained indefinitely if he is ultimately acquitted by his...
The media and blogosphere are predictably -- and justifiably -- abuzz about Candy Crowley pointing out that Romney was wrong when he claimed it took Obama two weeks to label the Benghazi attack an "act of terror." More interesting, though, is the push-back from Romney surrogates like Ed Gillespie, who said afterward that "[s]he was wrong about it, no doubt...
Apologies for interrupting the book discussion, but I wanted to flag the D.C. Circuit's blockbuster opinion in Hamdan v. United States, which was issued today. The D.C. Circuit has reversed the Court of Military Commission Review and held that material support for terrorism was not a war crime when Hamdan committed the acts for which he was convicted. Here are...
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...
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...
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...
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...
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...
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...
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....
