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Executive & Military

It’s Time to Come to Terms With Secret Law: Part I

Secret law. The words are chilling. They evoke Kafka, unaccountable government, liberty subordinated to state security – and to some ears, perhaps simply the paranoid rantings of tinfoil hat wearers. But the claim that the US government is creating secret law has become increasingly common and credible, levied by scholars, secrecy critics, courts, and by lawmakers and government officials of both parties.…   continue »

International Justice Day Round-Up III: Salvadoran Amnesty Law, Germany Apologizes to Namibia over Genocide, Corporate Criminality, and Colombia Ceasefire

This is Part III of an international criminal justice round-up covering ten of the top developments in the field this spring and summer. Part I is here and covers the Habré case, the travel of President Al-Bashir of Sudan, and the Open Society Justice Initiative’s report on crimes against humanity in Mexico. …   continue »

DOJ’s Motion to Dismiss in Smith v. Obama, the case challenging the legality of the war against ISIL

As I noted in an earlier post, Nathan Smith, a U.S. Army captain deployed to Kuwait as part of the campaign against ISIL, Operation Inherent Resolve, has sued the President, seeking a declaration that Congress has not authorized the hostilities in Iraq and Syria and that therefore the War Powers Resolution requires the President to remove U.S.…   continue »

John Brennan on “enhanced interrogation techniques”

At this event today at Brookings, CIA Director John Brennan reiterated what he has said before:

— “you cannot establish cause and effect between the [CIA’s] application of the[] EITs and any reliable or credible information provided by [the individuals subjected to them]”;

— use of such EITs is neither necessary nor advisable; and

— even if this or a future President were to change the executive orders or covert action findings, and authorize or require the CIA to once again use EITs such as waterboarding, Brennan would not do it, “irrespective of what the President says”; “he’d have to find another Director.”

Nothing especially new here.…   continue »

Judge Garland & The Foreign Sovereign Immunity Act

As promised, this post surveys several Foreign Sovereign Immunity Act (FSIA) opinions penned by Judge Garland while on the D.C. Circuit. Judge Garland has had occasion to consider several of the statutory exceptions to foreign sovereign immunity. This post concludes with some general observations of Judge Garland as a jurist gleaned from his FSIA cases.…   continue »

Visions and Revisions: Karen Greenberg on the Making of the Modern Security State

“It’s lovely to live on a raft. We had the sky up there, all speckled with stars, and we used to lay on our backs and look up at them, and discuss about whether they was made or only just happened.”

The Adventures of Huckleberry Finn

For people not intimately involved in national security debates, and who haven’t closely followed how we arrived at the modern security state, the decade-and-a-half following the surreal terror of September 11 have felt like an unmoored drift, a country floating aimlessly, if recklessly, down a river of indecision.…   continue »

Judge (Justice?) Merrick Garland & International Law

I recently had occasion to review the international law jurisprudence of Judge Merrick Garland as part of an evaluation prepared by the American Bar Association’s Standing Committee on the Federal Judiciary of the professional qualifications of Judge Garland to be the next Associate Justice of the Supreme Court of the United States.…   continue »