My colleague and friend John Fabian Witt penned the best confrontation with my historical argument in "Humane," and it deserves a reaction.
It would be hard to imagine a scenario that casts harsher light on the limits of American governance than the aftermath of Special Counsel Robert Mueller’s report—or one that demonstrates how lucky the country is that he chose to make the resulting mess a problem for democracy to solve.
Now that liability for corporations (foreign ones, at least) under the Alien Tort Statute (ATS) is off the table, the recriminations can begin.
Tuesday’s Supreme Court decision in Jesner v. Arab Bank was genuinely shocking. The case involved victims of terrorism and the plaintiffs sought a tort remedy against alleged financial supporters of that wrong. Few believed that the conservative justices, whatever their corporate-friendly jurisprudence across the board, would foreclose a remedy on these facts. Yet they did.
What immediately strikes outsiders to international law as it is understood in the United States—whether foreigners on a visit or Americans who come to our debates with other expertise and training—is how critically the field is affected by its local institutions and protocols. The stereotype is that the purpose of induction into international law is to provide some cosmopolitan lingua franca, for the sake of the gentle civilization of nations by universal norms and the altruistic caste of their stewards, who represent humanity more than any country.
I thought it would be interesting, even amidst all the pressing immediacy of day-to-day emergency, to step back and ask where we now are in the post-9/11 struggles over America’s national security and surveillance state.
This Sunday the New York Times Book Review prints my all-too-brief rundown of Mark Danner’s new Spiral: Trapped in the Forever War. Danner’s book is not a work of academic analysis or journalistic reportage but instead a synthetic account of America’s drift since 9/11 by someone who thinks the country has gone dreadfully wrong.