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Posts by Rick Pildes

Professor Pildes is the Sudler Family Professor of Constitutional Law and Co-Faculty Director for the Program on Law and Security at NYU School of Law. His scholarship focuses on legal issues concerning the structure of democratic institutions and politics, separation of powers, administrative law, and national-security law. A clerk to Justice Thurgood Marshall at the United States Supreme Court, Professor Pildes has been named a member of the American Academy of Arts and Sciences, a Guggenheim Fellow, and a Carnegie Scholar. Full bio »

Creating New International Law “Justifications” for Using Military Force Against Syria

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Thursday, August 29, 2013 at 8:03 AM

As I noted in an earlier post, the newly emerging uses of multi-lateral military force for humanitarian intervention — such as to respond to states that gas their own citizens — raise profound issues about the relationship between “the rule of (international) law” and morality/political judgment. Under existing international law, it is difficult to justify . . .
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Kosovo, Syria: When it Comes to Military Force, What’s the Proper Relationship Between Law and Political Judgment?

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Monday, August 26, 2013 at 5:05 PM

The potential use of military force in Syria and its past use in Kosovo — despite the likely “illegality” under international law and the U.N. Charter — raise important general questions about the modern, post-WWII attempt to establish “rule of law” constraints on the inter-state use of force. Jack and Ashley have noted the widespread . . .
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Great Read on Counterintelligence

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Monday, August 19, 2013 at 4:50 PM

As is widely known, the greatest act of successful deception in modern military history is convincing the Germans — at the decisive moment of WWII — that the D-Day invasion would take place at Pas de Calais, rather than on the much longer, wider, gently sloping, and penetrable beaches of Normandy. But I’ve recently finished . . .
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Does Judicial Review of National-Security Policies Constrain or Enable the Government?

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Monday, August 5, 2013 at 1:48 PM

With the current controversies over the NSA’s surveillance programs, I want to return to broader issues about how to think about the role of courts in the national-security area. In this area, government typically tends to be exceptionally resistant to judicial review of constitutional challenges. Moreover, American constitutional law’s tight requirements that limit courts to . . .
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Stephen Holmes on Drones

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Sunday, July 14, 2013 at 11:18 AM

Crafted with his characteristic mix of brilliance and dark speculations about the motives of government actors, Stephen Holmes, my colleague, has published an exceptionally rich essay in the Financial Times on issues concerning the use of drones, in the guise of a review of Mark Mazetti’s book, The Way of the Knife: The CIA, a . . .
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The Obama Speech: The Same Standards for Targeted Killings Apply to Non-Citizens as to Citizens

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Thursday, May 23, 2013 at 2:43 PM

There are many important strands to President Obama’s national-security speech, but I want to focus on just one particularly noteworthy element. In clear terms, President Obama announced today that the same substantive standards apply to targeted killings operations against non-American enemy combatants overseas as apply to American enemy combatants overseas. Here is what the President’s . . .
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Misconceptions Versus Essential Issues Concerning Drones

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Thursday, May 23, 2013 at 7:16 AM

I recently posted an essay, with co-author Sam Issacharoff, on what we conceive to be the key legal, institutional, and process issues concerning the use of drones for targeted killings — and even more importantly, what the underlying forces are that make these the critical issues. President Obama’s speech at the National Archives on Thursday . . .
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Are Drone Strikes Strategically Counterproductive in Yemen?

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Friday, March 8, 2013 at 4:38 PM

One of this country’s most knowledgeable writers about Yemen is Greg Johnsen, author of The Last Refuge: Yemen, Al-Queda, and America’s War in Arabia. Johnsen is often read as arguing that American drone strikes in Yemen do more harm than good, because they spawn increased membership in the jihadi forces there. Johnsen was here at . . .
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Confusion about “Imminence” and Targeted Killings

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Wednesday, February 6, 2013 at 11:27 AM

The central substantive issue, legally and morally, in the administration’s Targeted Killing White Paper is how the concept of an “imminent threat” should be understood. This is where much of the debate is going to focus. Already, outrage from American critics has been directed to this point, as in the response from Jeff Rosen and, . . .
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Targeted Warfare: Individuating Enemy Responsibility

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Thursday, August 16, 2012 at 12:29 PM

In an earlier post, here, I described an article I was working on, with my colleague Sam Issacharoff, on detention, targeted killings, and the fundamental transformation we see taking place in the practice, morality, and law concerning the legitimate use of military force. We have now posted the draft of that article, Targeted Warfare: Individuating . . .
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The Fundamental Transformation in the Law, Morality and Politics of War: Individuating The Responsibility of “Enemies”

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Tuesday, July 24, 2012 at 3:02 PM

I will soon be posting on SSRN, with my co-author Sam Issacharoff, a draft academic article that offers a broad, integrated conceptual and legal framework for understanding specific counterterrorism legal and policy issues, such as detention and targeted killings. Given the level of interest in these issues, we thought we would post the core thesis . . .
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Historical Perspective on Presidential Power

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Wednesday, April 25, 2012 at 10:53 AM

In an essay entitled Law and the President that I’ve just published in the Harvard Law Review, I began by providing a brief historical and political perspective on shifting views of presidential power over the course of the 20th and 21st centuries. The proper scope of presidential power remains a central focus of law, policy, . . .
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How Much Does Law Constrain the President?

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Friday, March 23, 2012 at 11:23 AM

Forthcoming next month in the Harvard Law Review is an essay of mine entitled Law and the President. The essay, here, explores the extent to which law constrains the exercise of presidential power in both domestic and foreign affairs. Here is an abstract: Since the start of the twentieth century, the expansion of presidential power . . .
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How Government Silence Undermines Terrorism Policies: Part II

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Sunday, March 4, 2012 at 5:26 PM

Attorney General Eric Holder will apparently give a public address on Monday that will provide a fuller explanation and justification for the government’s policies on targeted killings, including for the targeted killing of an American citizen in Yemen. Other administration officials, including the top lawyers in the State Department (Harold Koh) and Department of Defense . . .
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How Government Silence Undermines Terrorism Policies: Part One

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Sunday, October 9, 2011 at 3:27 PM

I want to put discussion of whether the government should publicly disclose the full legal framework behind its targeted killings program, including the killing of Al-Aulaqi, an American citizen, in a larger and more general philosophical and political context. Across administrations, government consistently undermines itself, in my view, by failing to participate more publicly in . . .
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Warsame: An Emerging New Model for Terrorism Cases?

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Tuesday, July 5, 2011 at 9:40 PM

As Bobby notes, the recently announced criminal prosecution of Ahmed Abdulkadir Warsame, captured overseas almost three months ago by U.S. military forces, could be an important test of an emerging hybrid model for handling alleged terrorism cases that offers an alternative to the stark war v. crime dichotomy. Consistent with the laws of war, Warsame . . .
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Do Commentators and Congress Treat All of the WPR as Law: The 60-Day Clock, Again

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Friday, June 24, 2011 at 4:56 PM

First, my thanks to Ben, Jack, and Bobby for permitting me to become an affiliated blogger on this terrific site. We are likely soon to get a test of how seriously Congress takes all of the War Powers Resolution (WPR). In particular, is Congress prepared to insist that the 60-day clock provision — thought to . . .
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