In this episode I speak with Rebecca Ingber, Professor of Law at Yeshiva University’s Cardozo School of Law, and formerly a lawyer in the Office of Legal Advisor in the U.S. Department of State. We discuss a recent essay in which Rebecca examines how international and domestic law operate together to facilitate the incremental moves by which the U.S. initiates, expands, and extends armed conflicts. The process involves legal justifications and rationales for each step towards war, with legal interpretations that, while made in good faith, are often strained and even beyond the pale. What is more, Congress and the courts tend to look to the international law principles as limitations on executive branch conduct, but then there is little check on how the executive branch lawyers interpret and expands such principles — and all of this focus on legal justification displaces a necessary and deeper policy analysis of the reasons for engaging in armed conflict. In exploring these issues, we also talk about whether legal scholars are fulfilling their role of keeping the government honest in its interpretation of international law, where exactly within the government such decisions get made, and why and how different areas of law get conflated and confused in the justifications for war!
– “Legally Sliding Into War,” Just Security, Mar. 15, 2021.
– “International Law as Executive Power,” 57 Harvard Int’l Law J. (2016).
– David Luban, “Complicity and Lesser Evils: A Tale of Two Lawyers,” Georgetown J. Legal Ethics, (forthcoming, 2021).
– Monica Hakimi, “The Jus ad Bellum‘s Regulatory Form,” 112 American J. Int’l L. 151 (2018) [See Episode 6!].
– E. M. Forester, The Machine Stops (1909).