Steve has responded to my post on Harold Koh’s sudden discovery of inviolable commander in chief powers. He asks me two questions, which I address below:
Ben is shocked (shocked!) by Harold Koh’s invocation of indefeasible presidential powers in his Oxford Union speech. But insofar as Ben is implicitly accusing the former Legal Adviser to the State Department of hypocrisy merely for having the temerity … Read more »
Earlier today, former State Department Legal Adviser Harold Koh gave a talk at the Oxford Union, entitled “How to End the Forever War?” His remarks begin as follows:
Thank you, Mr. President and Members of the Union, for inviting me
Here is video of the plenary panel from last week’s ASIL conference, entitled “International Law in the Obama Administration: The First Four Years.” Moderated by Donald Donovan, the panel included former State Department officials Harold Hongju Koh and Anne-Marie … Read more »
Our colleague Ashley Deeks has just published “The Geography of Cyber Conflict: Through a Glass Darkly,” as part of the Naval War College’s volume of International Law Studies on the geography of war.
The U.S. government has said … Read more »
Former Pentagon General Counsel Jeh Johnson is, at this hour, giving this speech at Fordham Law School in New York:
Keynote address at the Center on National Security at Fordham Law School:
A “Drone Court”: Some Pros and Cons
by
The distraction of the NDAA and the drone controversy led me to miss two other important lawfare developments in December: the Obama Administration asserted immunity for foreign government official defendants in two Alien Tort Statute lawsuits.
Of the two assertions … Read more »
(Updated and extended.) The White Paper’s reference to imminence has occasioned some heated rhetoric about the Obama administration stretching the notion beyond all possible ordinary meaning or bounds, etc. But it’s worth bearing in mind that there’s nothing new in … Read more »
There’s certainly a lot to say about the DOJ white paper on targeted killings, much of which has been said already (and well) by others (see Raff’s “Headlines and Commentary” post for links). At the risk of being unintentionally … Read more »
I’d like to briefly address two articles in the news today on U.S. cyber-attack strategy, one the New York Times piece that Jack already commented on and the other a Washington Post editorial. The Times reports on a “secret … Read more »
I spent a flight out to Minnesota yesterday reflecting on Jack’s and Trevor’s discussion over the weekend of Obama’s first term, his coming second term, the Bush administration, and the now-will-never-be Romney administration. I agree with nearly everything both Trevor … Read more »
Secretary of Defense Leon Panetta’s speech last week on cyber is more significant than has been reported. Most of the coverage focused on Panetta’s grave warnings about cyber threats facing the nation, but the speech’s real significance, I think, concerns … Read more »
Jack mentioned Eric Posner’s new article in Slate announcing that US drone strikes in Pakistan are illegal under the UN Charter because, among other things, they lack genuine consent from Pakistan and the so-called “unwilling or unable” test, which the … Read more »
Eric Posner has a piece in Slate which argues – based on this report in the WSJ about the ever-thinner forms of consent by Pakistan to USG airstrikes in that country – that the United States is making a mockery … Read more »
This remarkable Wall Street Journal story came out over Yom Kippur, so I’m late in commenting on it. But it’s worth everyone’s attention. It opens:
About once a month, the Central Intelligence Agency sends a fax to a general at
Ellen Nakashima has an interesting piece in the Post describing Iranian computer network operations directed at U.S. banks and other private commercial entities, depicting them as the latest developments in the ongoing shadow conflict. The timing of the story is … Read more »
I attended a conference yesterday at Ft. Meade, sponsored by the Staff Judge Advocate for US Cyber Command. I’ll have more on the conference as time permits, but for now, here is a nice summary by Ellen Nakashima of the … Read more »
On September 7, the Justice Department filed a Suggestion of Immunity on behalf of former Mexican President Ernesto Zedillo in a suit against Zedillo under the Alien Tort Statute and Torture Victim Protection Act by families of Mexican civilians killed … Read more »
On August 16, a judge in the Southern District of New York dismissed a suit brought against the Emir of Kuwait, Sheik Sabah al-Ahmad al-Jaber al-Sabah, under the Alien Tort Statute and the Torture Victim Protection Act, based on a … Read more »
From the Blog of the Legal Times, we learn that the ACLU has filed its opposition to the CIA’s motion to remand, in the Freedom of Information Act (“FOIA”) appeal now awaiting oral argument before the D.C. Circuit.
In … Read more »
David Remes writes in with the following observation:
Yesterday, Ben questioned the propriety of Harold Koh’s reference to “enemies of the state” at a State Department event marking the thirty-fifth anniversary of the Bureau of Democracy, Human Rights and Labor.
At a recent conference on the 35th year of the State Department’s Bureau of Democracy, Human Rights and Labor, State Department Legal Adviser Harold Koh made the following comments about Guantanamo:
I believe that this administration has tried to make
Jack has already posted, while I was in transit, Dan Klaidman’s account of the White House’s sponsoring of leaks in connection with the Baitullah Mehsud drone strike. The full account reads as follows:
When they finally took Mehsud out
Dozens of scholars have written a letter to complain about the constitutional basis for President Obama to ratify the Anti-Counterfeiting Trade Agreement (ACTA). ACTA, for those who don’t know, is a controversial trade pact designed to tighten domestic enforcement of … Read more »
Ken and Ben have recently commented on the national security speeches of Obama Administration officials, including most recently the remarks of CIA General Counsel Stephen Preston. As a former Bush Administration official who would like to encourage more bipartisanship on … Read more »
Several readers have made the good suggestion of creating a list of the “formal” or even (arguably, meaning in the opinion of the Readings Editor) “canonical” statements of the Obama administration regarding: national security and counterterrorism generally, use of force, … Read more »
We now have a collection of speeches from the past two years by the Obama administration’s top lawyers in the national security agencies and departments on targeted killing and (hypothetically speaking) drone programs – DOS, DOD, DOJ, and most recently, … Read more »
An important predicate for the legal and political justification for the U.S. role in the Libya intervention was that the United States, following the initial air attacks in March 2011, would transfer responsibility for operations in Libya to NATO and … Read more »
My confreres at Opinio Juris tell me that Harold Koh, Legal Adviser to the State Department, has given OJ the text of his address on Syria at the on-going annual meetings of the American Society of International Law (ASIL) with … Read more »
My former colleagues on the Washington Post editorial page have weighed in quickly on Eric Holder’s speech yesterday with an editorial entitled, “It’s Time to Release the Drone Memos.” The gravamen of the editorial, as the title suggests, … Read more »
On February 29, Judge Kollar-Kotelly of the District Court for the District of Columbia dismissed a lawsuit brought under the Torture Victim Protection Act against President Rajapaksa of Sri Lanka, based on a Suggestion of Immunity filed on January 13 … Read more »
I agree with Ken’s, Roger Alford’s, and Paul Rosenzweig’s defenses of Harold Koh, all three of which seem to me correct: Koh has an attorney-client relationship with the government that he did not have as an academic. He has … Read more »
Following the splendid University of Virginia School of Law conference last Friday at which DOS Legal Adviser Harold Koh delivered the keynote address, Notre Dame professor and Opinio Juris blogger Roger Alford commented on part of Koh’s speech in which … Read more »
Daniel Klaidman at Newsweek, whose forthcoming book on the Obama Administration’s counterterrorism policies promises to be must-read material, reports that the decision has been made to go public with some form of defense of the legality of the al-Awlaki strike. … Read more »
Peter Margulies finishes his dispatches from AALS with this meditation on Harold Koh, Ted Williams, and Joe DiMaggio. Whether he will survive up there in Red Sox Country after this piece of public heresy is, I suspect, open to question. … Read more »
Peter Margulies’s reporting on AALS panels continues with this dispatch:
Libya and Presidential Power
Presidential war powers were debated at the AALS conference that spurred my recent posts on detention and military commissions. The Libyan intervention elicited disagreement peeking
Lawfare readers who followed our coverage and analysis of the al-Aulaqi drone strike last fall (archived here) may be interested to see the UK House of Commons Library’s recently released research briefing on the matter (with citations including … Read more »
The Obama Administration filed an amicus curiae brief today with the Supreme Court in support of the Nigerian petitioners in the Kiobel case (which was brought against Shell Oil, relating to its activities in Nigeria), arguing that corporations may be … Read more »
Five years ago today, in remarks at the London School of Economics, I provided a comprehensive public statement of the U.S. Government’s views of the international legal framework applicable to the U.S. conflict with al Qaida, informed in part … Read more »
Adding to this year’s judicial cornucopia of Alien Tort Statute decisions on corporate liability, on Tuesday an en banc Ninth Circuit released its long-awaited decision in the even longer-running (eleven years!) Rio Tinto case, ruling that the ATS does not … Read more »
Peter Margulies writes in with an excellent summary of what sounds like a fascinating conference Friday at Boston University:
BU’s conf. Friday on the “Long War” in Afghanistan and Pakistan featured good news and bad news. The conference, co-sponsored by
This belated report just in by slow boat: In a brief filed on August 29, the Justice Department asserted immunity on behalf of President of Rwanda Paul Kagame in an Alien Tort Statute suit brought against Kagame in federal court … Read more »
In response to some push back, and at the risk of some repetition, I would like to clarify a bit more why I think there is no serious bar to the government revealing more about the legal basis for its … Read more »
The Washington Post reports that the Justice Department’s Office of Legal Counsel wrote a classified legal opinion in support of the al-Aulaqi killing. Carrie Budoff Brown* at Politico reports that former U.S. Representative and intelligence committee member Jane Harman says … Read more »
In an editorial on Friday about the al-Awlaki killing, I stated:
An attack on an enemy soldier during war is not an assassination. During World War II, the United States targeted and killed Adm. Isoroku Yamamoto, the architect of the
Below Gabor Rona has a sharp response to my earlier post on Charlie Savage’s story on the latest round of Johnson v. Koh. I think his response significantly mischaracterizes both what I said and the proper state of the law, … Read more »
The Keynote Address begins with a brief introduction from Jack. He notes that one thing extraordinary about Savage is his ability to extract information from government officials and the clarity with which he can describe and discuss complicated legal issues. … Read more »
The afternoon session of Day 2 of the conference begins with introductory remarks from Gabby Blum, the moderator of the afternoon’s first panel. She asks the panel to discuss the utility of force; what are the costs of engaging in … Read more »
Charlie Savage has a story about a dispute between DOD General Counsel Jeh Johnson and State Legal Advisor Harold Koh over the scope of the president’s legal authority to target members of al Qaeda-affiliated terrorist groups in Yemen (AQAP) and … Read more »
A federal court in Washington ruled on Thursday that former Colombian President Alvaro Uribe enjoys residual immunity from being forced to testify as a witness in an Alien Tort Statute/Torture Victims Protection Act suit against Drummond Company. (Uribe had been … Read more »
Friday, May 17, 2013
The Department of Justice’s Inspector General released an interim report on the Department’s handling of “known or suspected” terrorists who have entered the government’s witness protection program. The report found, among other things, that information on some program participants had not been turned over to no-fly list authorities; and, that two such people could not be located—though one… Read more »
