@becingber.bsky.social
Law prof at Cardozo Law. Former U.S. State Dept a few times over. Writes on international law, war powers and national security, presidential power and bureaucracy. https://cardozo.yu.edu/directory/rebecca-ingber
This explainer on the operational complexities and international law governing the Strait of Hormuz is so useful. @justsecurity.org continues to be an essential resource.
HYPOTHETICAL Legal Advice to SecDef Hegseth on “No Quarter” Statement (from General Counsel)
By Daniel Maurer, retired Judge Advocate
"... may be construed as ... a war crime. This may expose you to criminal liability under 18 U.S.C. 2441(c)(2) ... We recommend that you publicly retract."
It was these kinds of inferences and the near impossibility — politically — of defunding the U.S. military once the president had dragged us to war that led Congress to pass the WPR in the first place.
The White House could certainly claim this. But Congress explicitly stated in the war powers resolution that appropriations do not equal authorization to use force and should not be interpreted as such.
Starting at 6:00PM EDT:
Privileged to be speaking about lethal US maritime strikes and the law at this hearing of the Inter-American Commission on Human Rights.
www.youtube.com/@CIDH_IACHR/...
www.aclu.org/press-releas...
Certainly Hegseth is intentionally creating an atmosphere where effective war crimes prosecutions are unlikely to proceed under his tenure.
What I am thinking about instead is the extent to which Hegseth can be held accountable when/if such war crimes are committed on his prompting. See, e.g.—
Oh I don’t think it will make it easier to defend against prosecution. There’s no defense in following orders, let alone bellicose speeches.
Worth considering how war crimes prosecution decisions might have gone down had a SecDef or commander given a speech promoting exactly those crimes that the Abu Ghraib soldiers then committed.
And, as I think you’re suggesting — even without orders, these statements create a culture of dehumanization and celebration of cruelty. The Abu Ghraib abuses may not have relied on orders from above but the flames were fanned from the top.
Between the boat strikes (including the targeted killings of survivors) and the JAG firing spree, and given the resulting atmosphere of fear — I am sadly not sure we can rely on past assumptions. This by Jack is a very good piece:
What happens when you consider LOAC constraints as “woke” - the commission of war crimes becomes a talking point…. Here is one example where linkage evidence for command responsibility in respect of war crimes will be as easy as collecting clips from press conferences. Thanks, “Secretary of War”.
Watching this foreseeable chaos and tragedy unfold and I keep thinking about what this administration’s own lawyers revealed about its national security process, in the OLC memo on Venezuela. The not war by not planning theory of war powers:
This is well done
You’ve Got a Text
Warren: "It is still the case that the Trump admin cannot explain the reasons we entered this war, the goals we're trying to accomplish. The only part that seems clear is that while there is no money for 15m Americans who lost their healthcare, there's a billion a day to spent on bombing Iran."
It may seem odd that a Supreme Court seemingly willing to stick its nose into the middle of just about every legal and policy issue has effectively closed the door to litigating the legality of the U.S. war against Iran. As today’s “One First” explains, though, it set that precedent during Vietnam:
And/or courts are not the only entities that can and must interpret law?
Trump has gotten the message, from judges, from his own OLC, that he alone—without having to rely on actual evidence—gets to decide facts. And as long as he does so, and chooses the right magic word, that makes the operation legal — or at least unreviewable, which to him may be the same thing.
And consider that even judges who have pushed back on Trump’s power grabs based on wild national security claims have said they would defer entirely to his factual assertions. Here, the 5th Circuit in the Alien Enemies Act case:
Recall Trump’s exec order warning executive branch lawyers not to disagree with him on questions of law — www.whitehouse.gov/presidential...
It is no accident of language that the presidents’ lawyers do not themselves determine whether he has constitutional authority to act — in other words, whether his wars are legal. Instead, they leave that to him. The president “could decide” is the new OLC theory of war powers.
Moreover, the presidents’ lawyers have claimed that all of this is in the president’s absolute power to determine:
Or that the intelligence community has directly undercut the President’s claims:
static01.nyt.com/newsgraphics...
No matter that the President’s own lawyers appear to have seen no evidence for this claim, as evidenced by their concessions in their own legal memo justifying another war (Venezuela) — see below:
If the President claims, for example, we have been invaded—eg in the below proclamation—then that is conclusive, per the President’s legal theory. And in the AEA cases, many judges are poised to agree.
No matter that it may be self evident we have not been invaded, or suffered an armed attack
No matter that the US intelligence community may have said otherwise
In contexts from Iran to Venezuela, to boat strikes at sea to deportations without process to sending troops into U.S. cities, the President has been claiming the absolute, unreviewable authority to determine whether we are at war, have been invaded, whether there’s a threat. No matter the evidence.
This is not necessarily just off the cuff ramblings. There is something very specific happening here that relates to the legal war powers the President claims, and that his lawyers have been claiming for him.