By David B. Rivkin Jr. and Lee A. Casey

(originally published in The Washington Post on Saturday, May 10, 2008)

Hamas claims that former president Jimmy Carter’s recent meeting with its leader, Khaled Meshal, marks its recognition as a “national liberation movement” — even though Hamas rockets fired from the Gaza Strip, which Hamas rules as an elected “government,” continue to rain down on Israel’s civilian population. While Hamas is clearly trying to bolster its legitimacy, the conflict along Israel’s southern border has a broader legal dimension — the question of whether, as a matter of international law, Israel “occupies” Gaza. The answer is pivotal: It governs the legal rights of Israel and Gaza’s population and may well set a legal precedent for wars between sovereign states and non-state entities, including terrorist groups such as al-Qaeda.

Israel’s critics argue that Gaza remains “occupied” territory, even though Israeli forces were unilaterally withdrawn from the area in August 2005. (Hamas won a majority in the Gazan assembly in 2006 and seized control militarily in 2007.) If this is so, Jerusalem is responsible for the health and welfare of Gazans and is arguably limited in any type of military force it uses in response to continuing Hamas attacks. Moreover, even Israel’s nonmilitary responses to Hamas-led terrorist activities — severely limiting the flow of food, fuel and other commodities into Gaza — would violate its obligations as an occupying power.

Read more »

The ACLU loses its nasty suit against former defense officials.

By The Wall Street Journal 

(published January 28, 2012)

The guerrilla legal campaign against national security suffered a big defeat this week, and the good news deserves more attention. The victory for legal sanity came Monday when the Fourth Circuit Court of Appeals upheld a lower court decision to toss out a suit brought by aspiring terrorist Jose Padilla against a slew of Bush Administration officials.

Readers may remember that Padilla was arrested in 2002 for plotting to set off a dirty bomb on U.S. soil. He was detained as an enemy combatant, convicted in a Miami court and sentenced to 17 years in prison. But Padilla has been adopted as a legal mascot by the ACLU and the National Litigation Project at Yale Law School, which have sued far and wide alleging mistreatment and lack of due process.

Read more »

(Published in The Washington Post, March 12, 2012)

While we hold the military’s honor sacred, the government cannot penalize speech, whether true or false, simply because it might harm this honor.

Any law that seeks to protect the government’s reputation runs afoul of the most basic bargain of sovereignty, reflected in our Constitution. James Madison said, “The censorial power is in the people over the Government, and not in the Government over the people.” In this context, it is doubtful that the government can ever be libeled by a citizen, any more than a citizen can libel himself. We don’t let the government sue for libel — only individual officials. And even if the government could be libeled, the First Amendment forbids laws banning speech that challenges or impugns the government’s reputation.

Read more »