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David Kaye@davidkaye.bsky.social |
1893 followers 372 following 1626 posts
californian. human rights, tech, international law. uc irvine. gni. fulbright. article 19. prior: UN special rapporteur. go bears!
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David Kaye
@davidkaye.bsky.social
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where is barack? all i get are his ads asking for campaign $$$. he's effectively the moral leader of the party, like it or not, & he's probably the only one who can move things, whatever direction he thinks we need to go.
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David Kaye
@davidkaye.bsky.social
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i'm not sure i see this as a consensus on this site. i see a lot of commentary along the lines of: we could use a better candidate; we don't have much time or process to make that happen so that a dem wins; biden has to convince dems he's up for it; he hasn't yet; we're screwed either way.
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David Kaye
@davidkaye.bsky.social
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because he'll be fine
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David Kaye
@davidkaye.bsky.social
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you are absolutely correct. still, step 1, drag someone over the finish line.
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David Kaye
@davidkaye.bsky.social
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wise 🧵 here
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David Kaye
@davidkaye.bsky.social
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i haven't thought about this much, let alone studied it, but can we imagine courts saying a presidential order is "manifestly" unlawful even though he himself is immune from criminal prosecution? so subordinates have no safe harbor?
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David Kaye
@davidkaye.bsky.social
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gift link for this outstanding paul mozur/adam satariano piece in the times about weaponized tech and AI, focused on Ukraine. Highly recommend.
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David Kaye
@davidkaye.bsky.social
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each hypo seems crazier than the last, and yet it is such an incredibly bad and poorly reasoned opinion, each has this same answer. and the court just doesn't care.
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David Kaye
@davidkaye.bsky.social
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that explains it!
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David Kaye
@davidkaye.bsky.social
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given all the text messages and emails he sends me, i don't know how he had time to write this in the first place
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David Kaye
@davidkaye.bsky.social
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that's one approach
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David Kaye
@davidkaye.bsky.social
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i would love to see both, agree they are wishcasting (certainly the second). i just think the legislative agenda needs to move to this, and gives another reason why it's so important not to lose congress.
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David Kaye
@davidkaye.bsky.social
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basically, trump v US is now law. do we roll over and accept impunity? or do we find other ways to hold presidents to account? i think the latter, even tho i recognize how difficult it will be. to my mind, key is to improve/protect access to information and press freedoms. in law.
1 replies 2 reposts 19 likes
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David Kaye
@davidkaye.bsky.social
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big Q: w/presidential impunity, what legal tools are needed to build a culture of accountability? for example... - vast improvement to FOIA, timelines, sanctions, etc. - pass the PRESS Act - wherever law's application to potus unclear, make it clear. - adopt US national human rights institution
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David Kaye
@davidkaye.bsky.social
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i spent several days in Budapest last week and gave an interview to RFE/RL's Hungarian station. you can find it here:
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David Kaye
@davidkaye.bsky.social
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"It is now clear that the Roberts court believes the separation of powers means that both presidents and courts stand beyond the reach of the law." Excellent piece here. 🎯
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David Kaye
@davidkaye.bsky.social
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this is what really drives me crazy. i am totally willing to be settled and move forward, mostly because I can't see the viability of other options, but he's got to be out there.
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Gautam Hans
@gshans.bsky.social
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You'll have to read the WaPo piece for this entirely accurate take from @paulgowder.bsky.social that this lawsuit is racist garbage. www.washingtonpost.com/education/20...
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Joshua J. Friedman
@joshuajfriedman.com
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I think people are overreading that Jim Clyburn quote x.com/MSNBC/status...
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Rick Hasen
@rickhasen.bsky.social
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In New Supreme Court Social Media Case, Echoes of Citizens United on “AntiDistortion” and the Foreign Campaign Spending Ban, with Implications for Shutting Down Tik-Tok electionlawblog.org?p=144213
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David Kaye
@davidkaye.bsky.social
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well kavanaugh almost certainly has misled the senate about his involvement in and knowledge of the post 9/11 geneva and torture decisions. that era shaped his views, i'm sure. so there's at least one.
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David Kaye
@davidkaye.bsky.social
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my only point is that, if the ICC concludes that the US lacks criminal jurisdiction over presidents for official acts, & that he can/does immunize subordinates, it will be able to pursue a case ag him/them. obv more to it than this but it's a very clear implication of the court's opinion.
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David Kaye
@davidkaye.bsky.social
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kagan's final para seems apt
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David Kaye
@davidkaye.bsky.social
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exactly. not a one-off. add: Rucho.
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Greg Sargent
@gregsargent.bsky.social
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Chilling point from @rickhasen.bsky.social on SCOTUS ruling and second Trump term, on today's pod:
"You want to know how far this opinion goes? Just wait six months. He's going to get advice as to what his maximal power is. We may find out sooner rather than later how far these powers go."
3 replies 22 reposts 71 likes
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David Kaye
@davidkaye.bsky.social
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I don't think it's a crazy hypothetical to imagine an Afghanistan-like situation in the future, in which the target is the president, and now there is zero argument about investigation/prosecution of him.
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David Kaye
@davidkaye.bsky.social
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OK. So the U.S. is fighting a war in the territory of an ICC state party. POTUS orders an unlawful strike on a hospital. What then? Still silly?
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David Kaye
@davidkaye.bsky.social
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OK. So the U.S. is fighting a war in the territory of an ICC state party. POTUS orders an unlawful strike on a hospital. What then? Still silly?
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Rick Hasen
@rickhasen.bsky.social
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The Supreme Court’s Irresponsible Murkiness Over Whether the President Could Remove His Attorney General by Poisoning Him in the New Trump Immunity Case electionlawblog.org?p=144205
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David Kaye
@davidkaye.bsky.social
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i don't know, really. seems like the logic but if i were a subordinate, i would definitely not take that to the bank. i am almost certain the ICC wouldn't see it that way and i'm not sure a court martial would either.
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David Kaye
@davidkaye.bsky.social
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right, complementarity means that, if a state is demonstrably willing & able to prosecute a crime within the ICC's jurisdiction, the ICC should not prosecute it. but the US can't make that arg, for at least the pres, if he's immune from criminal prosecution. opens the door...
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David Kaye
@davidkaye.bsky.social
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depends on the crime. there's no immunity from manifestly unlawful orders. but what is unlawful now? who decides? the court may be throwing all this up in the air.
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David Kaye
@davidkaye.bsky.social
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'look forward' no doubt overstates it... anyway, great piece, hayes.
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David Kaye
@davidkaye.bsky.social
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i look forward to debates over this, which given US power projection, will no doubt come sooner or later
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David Kaye
@davidkaye.bsky.social
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not only nixon but w and the entire post 9/11 detention/torture apparatus
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David Kaye
@davidkaye.bsky.social
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is torture an official act? are war crimes? both are criminal under U.S. law. what happens to presidential command responsibility? also, if POTUS is immune from prosecution, there is no complementarity. the court has made it easier for the ICC to pursue cases ag american presidents.
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Carla Winston
@carlawinston.bsky.social
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This is something that's been bugging me. The US is a party to the Genocide Convention. Article IV states that even "constitutionally responsible rulers" will be punished. The provisions have been incorporated into domestic law, with no exceptions for public office or official acts. Now what?
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David Kaye
@davidkaye.bsky.social
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The Expansion of Justice Act of 2024
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David Kaye
@davidkaye.bsky.social
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Justice Jackson, by the way, is on it
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David Kaye
@davidkaye.bsky.social
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we are all understandably focused on how the court undermines domestic rule of law. but it's striking just how out of step the court is with the long-term trend of senior official responsibility for war crimes, crimes ag humanity and genocide.
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David Kaye
@davidkaye.bsky.social
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is torture an official act? are war crimes? both are criminal under U.S. law. what happens to presidential command responsibility? also, if POTUS is immune from prosecution, there is no complementarity. the court has made it easier for the ICC to pursue cases ag american presidents.
6 replies 38 reposts 129 likes
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Dr Sanjana Hattotuwa
@sanjanah.bsky.social
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And for those of us who have only known authoritarianism’s succour through supine legislatures, & a pliant judiciary, what SCOTUS decision enables in US is a familiar experience. The West talks of history’s lessons. We can speak to lived experience, negotiated daily, of absolute power’s violence.
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David Kaye
@davidkaye.bsky.social
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as usual, @rickhasen.bsky.social nails it, capturing the awfulness of john roberts & his decimation of democracy (which is not new) slate.com/news-and-pol...
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Chimene Keitner
@keitnerlaw.bsky.social
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Wondering if there are any analogies to be found in the Westfall Act context, and if so which way those cut?
www.justsecurity.org/77496/swalwe...
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Chimene Keitner
@keitnerlaw.bsky.social
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How much wiggle room is there for the court on remand to say that attempting a coup cannot be an official act?
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David Kaye
@davidkaye.bsky.social
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these kinds of passages very much read as lawyers worried about lawyer-ish things (how are you gonna get good unvarnished advice?) but not about the purpose of democratic governance, separation of powers, the rule of law, etc.
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David Kaye
@davidkaye.bsky.social
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not one of the major 9/11 detention cases would come out right with this court. not a one. they would have bought john's arguments on separation, habeas and any other grounds they could make up, and wouldn't have even cited int'l law.
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David Kaye
@davidkaye.bsky.social
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i can't stop thinking about the short jump from the way in which the torture/geneva/wartime post 9/11 memos were written/justified (by a thomas clerk of course) to the way this court approaches law.
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David Kaye
@davidkaye.bsky.social
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i should really say 'approaches presidential power'. it's the same idea, that the president needs to operate without constraint. it's lawlessness justified according to the requirements of power.
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David Kaye
@davidkaye.bsky.social
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i can't stop thinking about the short jump from the way in which the torture/geneva/wartime post 9/11 memos were written/justified (by a thomas clerk of course) to the way this court approaches law.
3 replies 6 reposts 41 likes