In association with the International Commission of Jurists

National Security Law

19 May

Jack Goldsmith has a new essay out in The New Republic, "The Cheney Fallacy," comparing the basic elements of the Obama and Bush national security and counterterrorism policies.  It walks through eleven core features of the national security-counterterrorism apparatus, from Guantanamo to targeted killing to interrogation, etc., and compares the two administrations.  Certainly I think this is the right basic...

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19 May

Anonymous senior official in the Obama administration, 2009: [T]he hearsay rule is not one of those things that is rooted in American values. The Sixth Amendment to the United States Constitution, 1791: In all criminal prosecutions, the accused shall enjoy the right...

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17 May

I'm not sure I entirely agree with Kevin's last post re the Wall Street Journal, but I'm going to let that go in favor of taking up another issue that comes from an earlier WSJ editorial, Pelosi's Self-Torture.  (WSJ, editorial, May 15, 2009.)   In the middle of that editorial (with which I otherwise largely agree), the Journal notes that Pelosi...

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17 May

I realize that it's foolish to expect accuracy from the Wall Street Journal's editorial page, but it has outdone itself with the following statement, part of an editorial lavishing praise on Obama for resurrecting the military commissions: Another red herring is supposedly tightening the admissibility of hearsay evidence. Tribunal judges already have discretion to limit such evidence, and the current rules...

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15 May

Amos Guiora has a link at National Security Advisors for his new article of domestic terror courts. He writes in his abstract: President Barack Obama has stated that among his initial priorities as commander-in-chief is closing the United States detention facility in Guantanamo Bay. One of his first actions after taking office was to suspend all legal proceedings in Guantanamo so that “the...

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14 May

I spent the past two days at an excellent conference organized by Ben Wittes - we discussed his book Law and the Long War (which I see you can get for the bargain price of $6.99 on Amazon) here at OJ when it came out - on ways in which Congress should legislate the future of US counterterrorism.  It was...

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11 May

Last week, I blogged about my recent symposium contribution, examining what role the Executive plays in U.S. state agreements with foreign governments, whether national or sub-national in character.  Since then, I've posted a much bigger piece that's forthcoming in the Texas Law Review -- Unpacking the Compact Clause (you can download it here).  Building on my earlier work, this article examines actual...

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11 May

I am obviously on record as supporting the criminal prosecution of the individuals involved in the CIA's torture regime -- the interrogators who inflicted it, the military and government officials who ordered it, the OLC lawyers who rationalized it.  Such prosecutions are, unfortunately, extremely unlikely -- at least in the United States.  Moreover, there does not seem to be any...

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05 May

I've just posted a piece I did for Peggy's (great) Missouri v. Holland conference last year, entitled The Elusive Foreign Compact.  Granted I'm weeks (if not months) behind other participants in getting my contribution posted (see, e.g., here and here).  Hopefully, however, this is a case of better late than never.  For those who might be interested, here's the abstract: This symposium essay identifies...

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03 May

William Ranney Levi's paper on interrogation techniques, Interrogation's Law, is forthcoming in Yale Law Journal, but is up at SSRN.  Here is the abstract: Conventional wisdom states that recent U.S. authorization of coercive interrogation techniques, and the legal decisions that sanctioned them, constitute a dramatic break with the past. This is false. U.S. interrogation policy well prior to 9/11 has allowed...

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02 May

I imagine many readers have by now seen this story in the New York Times (and Julian beats me to it!) reporting that the Obama administration appears ready to return to military commissions for trying at least some Guantamo detainees: Officials who work on the Guantánamo issue say administration lawyers have become concerned that they would face significant obstacles to trying...

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02 May

So I'm not exactly surprised that Obama is planning to revive the use of military commissions to try terror suspects, (according to the NYT).  The Obama administration is moving toward reviving the military commission system for prosecuting Guantánamo detainees, which was a target of critics during the Bush administration, including Mr. Obama himself. No doubt there will be some amendment to the Bush commissions,...

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