Words of wisdom from Tommy Crocker at The Faculty Lounge: Comments today by Gen. Michael Hayden make clear a further reason why the Obama Administration should name a special prosecutor to investigate potential war crimes in light of everything we know, and have recently learned, about CIA interrogations of "high value al Qaeda detainees." Gen. Hayden has played a vocal role...
Just in case you hadn't had enough of the Koh discussions, here are Stuart Taylor and Evan Thomas in Newsweek. I am in broad agreement with this assessment, for whatever that is worth. I also broadly agree with Jonathan Adler's assessment over at Volokh (below). There, I've said all I want to say in the Koh wars. Well, not quite. Of...
In today's Washington Post, Curtis Bradley and Jack Goldsmith have an editorial attacking the recent refusal of a federal judge to grant a motion to dismiss in Khulumani v. Barclays National Bank Ltd, the ATS lawsuit brought by victims of apartheid against 23 corporations who did business with the South African government during the apartheid era. It's a remarkably unpersuasive...
More evidence that the CIA interrogators did not rely in good faith on the OLC memos: Bradbury's 30 May 2005 memo acknowledges (p. 37) that the CIA Inspector General's report found that the CIA waterboarded Khalid Sheikh Mohammed 183 times in March 2003 and Abu Zubaydah 83 times in August 2002. That regime far surpasses the CIA's own internal guidelines...
As we all know, the ICC does not have jurisdiction over the acts of torture committed by the CIA at Guantanamo Bay -- neither the US nor Cuba is a member of the Court. Nevertheless, it is worth noting that it would be far easier to prosecute the CIA interrogators at the ICC than in the US, because there is...
I argued below that "good faith reliance" on OLC opinions does not justify promising CIA interrogators that they will not be prosecuted for their criminal acts. With regard to waterboarding, it is important to note that it seems clear some of the interrogators cannot even argue good faith reliance. Consider the following footnote from Bradbury's May 10, 2005, memo, discussing...
Having criticized Obama somewhat regularly as of late, it's important to give him partial credit where partial credit is due -- he has released the four OLC torture memos with a minimum of redaction. You can find the memos here. That could not have been an easy decision, given the CIA's opposition to having its systematic criminality (further) exposed. Nevertheless, Obama...
I mentioned a couple of days ago that the case against the Bush Six was likely to go forward. Unfortunately, rumors of the case's survival turn out to be somewhat exaggerated: Spain's attorney general said he'll seek dismissal of an investigation of Bush administration officials for alleged torture of Guantanamo Bay, Cuba, prisoners. Attorney General Candido Conde-Pumpido said Thursday the claim against...
As with the earlier comments by Ed Swaine, I greatly appreciate Michael Ramsey’s astute observations regarding how political commitments fit into the constitutional discourse. I've endeavored to provide my initial responses to each of his suggestions below, although surely Duncan and I will build from his comments as we develop our theories going forward. We are pleased that Professor Ramsey agrees...
[Michael D. Ramsey is a Professor of Law at the University of San Diego Law School and author of “The Constitution’s Text in Foreign Affairs” (Harvard Univ. Press, 2007).] Duncan Hollis and Joshua Newcomer have written a fascinating article on an important and underappreciated topic. I agree with their basic propositions, especially that “political commitments” (as they call non-binding personal pledges...
[This post was jointly authored by Duncan Hollis and Joshua Newcomer] Ed Swaine brings his typical thoughtful (and rigorous) method to our article, and we greatly appreciate his insights, not only for engaging with our ideas but also for suggesting how we might advance them in future scholarship. Since Ed has framed his comments as questions, we’ve endeavored to provide...
Thanks to Opinio Juris for hosting this discussion and to the editors of the Virginia Journal of International Law for their discerning taste in publishing such an excellent article. Duncan Hollis (who has published widely both on the international aspects of treaties and on their domestic significance, and so is expertly situated to address this question) and Joshua Newcomer (already publishing...
