Boston and the Dangerous Calls for “Enemy Combatant” Status

(Published in the Huffington Post,  Apr. 30, 2013, and The Truman Doctrine blog, Apr. 30, 2013)

The Obama Administration announced last week that it would prosecute Boston bomber Dzhokhar Tsarnaev in the Federal criminal justice system. This should have been unremarkable, but it came amidst a cacophony of voices demanding that Tzarnaev be classified and treated as an “enemy combatant.” There were calls to similarly classify the Christmas day bomber, the Times Square bomber, and several other terrorist suspects captured in the United States. Such claims have no legal validity, and are indeed dangerous.

The calls for “enemy combatant” status not only came from various so-called pundits on Fox News and the like, but also from more serious quarters. Senator Lindsey Graham criticized the administration, arguing that Tsarnaev should be classified as an “enemy combatant” under the law of armed conflict for the purposes of extracting intelligence.

Alberto Gonzales, former White House in the Bush administration stated in an interview last week that “nothing prevents the President from deciding: ‘This isn’t working, it’s not going the way we hoped it would go, so I’m pulling him out of the criminal justice system and I’m designating him an enemy combatant.'” … Read more…

On the Anniversary of the Iraq Invasion

(Published in the Truman Doctrine Blog, part of a series of 250 word entries on how the Iraq War shaped one’s life and ideas)

Back in 1990, in the run-up to the Gulf War, I was a naval officer, and like most of the world, supported the need to use military force. As a student of history, I understood that force is sometimes necessary in the face of aggression.

By 2003, I was a lawyer, and like much of the rest of the world, I viewed the invasion of Iraq as unnecessary, unwise, and unlawful. The Bush administration’s rationales shifted from “preventative” self-defense against Iraq’s WMD, to resurrection of the U.N.’s authorization to use force in the Gulf War, to claims of links to Al Qaeda and 9/11. In the absence of WMD, the government even stooped to advancing human rights justifications for the attack. None were valid.

I was not directly affected by the war, but I was increasingly disturbed by the developments in Iraq, and the so-called “global war on terror” to which it was inextricably linked. The hundreds of thousands of civilian dead, Guantanamo Bay, Abu-Grahib, the torture memos, targeted killing – and all distorting the law and eroding the rule of law, at home and in the international system.

These contributed to my decision to leave practice and head back to school to research the legal constraints on the use of military force. I became a law professor. So in this way I suppose the war helped shape my life’s path. And I strive for a time when such unjust wars will be more difficult for democratic governments to wage.

How and Why Japan Should Amend its War-Renouncing Article 9

(Published in The Japan Times, Aug. 4, 2012)

The pressure is mounting to either amend Article 9, the war-renouncing provision of Japan’s Constitution, or to increasingly disregard it and so make it irrelevant. In April the Liberal Democratic Party (LDP) published its proposal for amending the Constitution, and the dangers it posed for Article 9 was analyzed here on June 6 (“LDP’s dangerous proposals for amending antiwar article”). But the response to such amendment proposals by the supporters of Article 9 continues to be one of complete denial — that is, a categorical argument that Article 9 should not be amended at all.

This position is misguided. There are both strategic and legal reasons why the left must develop realistic alternative amendment proposals that would preserve and strengthen the core elements of the provision, but eliminate those elements that undermine it. In a chapter in the book “A Time for Change? Japan’s ‘Peace’ Constitution at 65,” published last month by the Woodrow Wilson Center for International Scholars (the chapter is available online: http://bit.ly/MWGF8T), I explain why Article 9 should be amended, and provide draft language that can serve as a basis for beginning a discussion on alternate amendment proposals.

Flat out rejection of any and all possible amendments to Article 9 is dangerous as a strategic matter. The national security environment of Japan has shifted in the last couple of decades, with the emergence of a nuclear-armed North Korea, and the growing military strength of China. In addition to these perceived threats, there is an increasing sense that Japan should be doing more to fulfill its international responsibilities. Moreover, the Japanese Self-Defense Force (SDF) has participated in non-combat roles in such conflicts as Afghanistan and Iraq with no adverse consequences. … Read more…

The Law and Congressional Red-Lines on Iranian Nuclear Talks

(Published in the Truman Doctrine blog, July 11, 2012)

The Moscow round in the talks with Iran over its nuclear program, in which the world powers are ultimately trying to prevent Iran from developing nuclear weapons, collapsed last month. The next round of talks are scheduled to begin soon. This has renewed claims that further talk is futile and harsher measures are required, and counter-arguments that diplomacy is failing precisely because the U.S. refuses to make reasonable and necessary concessions in the negotiations.

One of the central issues in this debate is whether the U.S. should “permit” Iran to enrich uranium for non-military purposes. Israel and its supporters in Congress have pressed for a categorical “red-line” in the negotiations, according to which Iran should be prohibited permanently from any enrichment whatsoever. Others have responded with powerful policy and strategic reasonswhy, on the contrary, a “concession” to acknowledge Iran’s right to develop a peaceful nuclear program, is necessary for there to be any meaningful chance of success in the negotiations. Past U.S. policy has, of course, been that Iran has the right to peaceful nuclear energy development, and the proposed red-line would be a departure from past policy.

The claims against Iran are, of course, framed largely in legal terms — and there should, therefore, be a careful consideration of the legal principles that relate to this central issue of Iranian enrichment. And an analysis of the law suggests that a U.S. failure to acknowledge Iran’s right to peaceful enrichment would not only be unprincipled and perhaps unwise, but it would be fundamentally inconsistent with the governing legal regime – the legal regime that is the foundation for our objection to Iran’s program to in the first place. … Read more…