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Ariel N. Lavinbuk,
Sunday, 02 April 2006 |
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While considerable attention has been paid to the constitutional and treaty questions before the Court in Hamdan, the case begins with a seemingly straightforward question of customary international law: Does conspiracy, the sole charge against Hamdan, violate the law of war? The question is essential because military commissions may only be used to try such violations.
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Stephen Townley,
Sunday, 02 April 2006 |
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The ways we fight - and the reasons why we fight - have changed. The Predator drone, last seen screaming across the screen in Syriana, has replaced the Winchester rifle in popular imagination; and Saddam Hussein is rightly considered a war criminal for violating the Chemical Weapons Convention, a treaty signed less than fifteen years ago. But the law of war the administration invokes to try Salim Hamdan is an outdated relic (although ironically, today’s military commissions do not even offer the protections afforded by their ancestors). It is lifted - not from today's battlefield - but from the pages of General Scott’s account of the 1847 Mexican-American War.
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The Pocket Part,
Tuesday, 28 February 2006 |
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The Yale Law Journal will host a symposium on executive power on March 24-25. The symposium will focus on the nature of executive power at the federal, state, and local levels. From the response to Hurricane Katrina to the controversies over NSA wiretapping, theories of executive power have moved over the past year from the academy to the headlines. We are proud to kick off the symposium on The Pocket Part with contributions from five authors who were asked to reflect on “2005: The Year of the Executive.”
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Dean Harold Hongju Koh,
Tuesday, 28 February 2006 |
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In an uncertain world, crisis demands executive action. And so 2005, a year of crisis, became a year of executive muscle-flexing, in response to crises ranging from Hurricane Katrina to avian flu to the Global War on Terror. In many ways, the legal debates generated were déjà vu all over again. Exorbitant claims of executive power in the War on Terror triggered the strongest clash since the Iran-Contra Affair between a constitutional vision of unchecked executive discretion bottomed on sweeping dicta in United States v. Curtiss-Wright Export Corp. and a counter-vision of shared institutional powers symbolized by Justice Jackson’s canonical concurrence in Youngstown Sheet & Tube Co. v. Sawyer: a clash of visions I discussed more than fifteen years ago.
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