Advisory Opinions - Law of War

Episode Date: October 10, 2023

Israel declares war on Hamas after the terrorist organization murders hundreds of civilians. But now, with Israel already carrying out attacks in Gaza, things are about to get litigious. David French analyses the meanings and implications of the Law of War and debates Sarah Isgur whether International Law is even a thing. Plus if you want to hear David explain the moral dimension of war law, join The Skiff for a short impromptu follow up discussion. -Military tribunals -Ukraine/Russia comparison -The complicated, interesting, and weird details of the Acheson Hotel case -Mootness versus standing doctrines in the CFBP case Show Notes: -Urban Warfare Project by John Spencer -Law of Land Warfare To get The Skiff on your personal podcast player: CLICK HERE to get your personal feed. How to subscribe to The Skiff: To follow The Skiff on Apple Podcasts, Google Podcasts, or wherever you catch your podcasts, please follow these instructions: -Choose which device you prefer to listen on (Mac, iOS, Android…). –Click here to get your personal feed. (Make sure you’re logged in as a Dispatch member!) -Select The Skiff. -Select your device and podcast player (Apple Podcasts, Spotify, Pocket Casts, etc.): this will let you subscribe to the feed for direct updates! Note: If your preferred podcast player asks you to subscribe by RSS feed you’ll need to copy and paste a URL link. To get that link, go back to the menu with all of the options to subscribe (the page with all of the player logos), scroll to the bottom, and copy the link you see there. Then, go back to your player and paste it in the field. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Ah, do, da-da-dee-da, do-da-do-do. Certain conditions apply. Details at Fizz.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. And we have sort of chucked what our original podcast today was going to be about. We've kind of pushed it to the second half. So in the second half of this podcast, we're going to talk about the two super fun Supreme Court cases from the opening of the term. That's right. The funding mechanism for the CFPB

and my personal favorite, Atchison Hotel on ADA testers. We'll get to those fun details in a little bit. They were fun arguments. But first, David, we're going to talk law of war. Yeah. Yeah, we're going to talk law of war because I'm pretty sure if it does, in fact, appear that Israel is going to do what virtually any sovereign nation would do if it had confronted an attack like it experienced late last week and is going to try to not just manage Hamas or not just sort of have an incursion to punish Hamas, but the stated goal is to remove Hamas from power in Gaza. And so every single time the Israeli-Palestinian conflict flares, especially in Gaza, where Hamas has been in control since the early 2000s or mid-2000s, there's an enormous amount of controversy and argument over the law of war and whether Israel, when it destroys a civilian target, et cetera, violates the laws of war. And Sarah, this might come as a surprise to

you considering the fact that most commentary, say around the Supreme Court, is so informed and reasonable that the argument over international law of armed conflict is often uninformed and unreasonable. So we're going to try to make it more, we're going to try to shed some light more than heat. Okay. I want to start at the very beginning. Yeah. International law. Is this a thing? Well, it's kind of a moot question in this case, because the international law of armed conflict is domestic law as well. So, for example, the IDF binds itself under Israeli legal principles to complying with not just the international law of armed conflict, which is a complex web of both treaty and customary law, but also its own standards. So the way to look at, for example, in the United States military, the Uniform Code of Military Justice essentially comes in and says, all of these standards and all of these rules regarding the law of armed conflict, we're going to make you, American soldier,

comply with, and you can be punished under American law. And in fact, we've opted out, as I believe Israel has as well, from the Rome statute, from the International Criminal Court. And so we do not subject ourselves to the jurisdiction of these international tribunals, subject ourselves to the jurisdiction of these international tribunals, but we very definitely subject our own soldiers to these international standards. And that's number one. Number two is, if you look at the history of Israeli military operations, one of the things that you'll find is Israel finds itself both in its conventional conflicts with, say, the Egyptian army or the Syrian army, etc., or the Jordanian army back decades ago, or in its current conflicts with non-state terrorist actors. before international pressure or international outcry begins to degrade support for the Israeli military efforts so much that it starts to damage Israel's economy, Israel's potential standing in the international community. And a lot of that clock, Sarah, is dictated,

the length of that clock is dictated by the perception, accurate or not, that Israel is violating the law of war. And so both from a matter of substantive law and from a matter of sort of international relations, it actually just really matters. Okay. Interesting. I want to, I guess, sort of compare this to 9-11, even though I don't think the comparisons to 9-11 are apt in any number of ways. Right. In this very limited way, I want to ask the question. So you're attacked by terrorists.

You declare war against those terrorists who are not a sovereign nation. Right. What are the differences that the law of war would prescribe between, for instance, declaring war against Japan after a blitz attack versus declaring war against the Taliban after 9-11 versus declaring war against Hamas? And are there differences between all three, maybe? Or are the Taliban and Hamas similarly situated as such as they are? Yeah, it's a really good question.

So traditionally you've had sort of three, let's do buckets, Sarah's buckets. There's actually my favorite commenter name in the dispatch is somebody who goes by the name Sarah's buckets. So shout out to Sarah's Buckets. So bucket one would be armed conflict between sort of what you would call a high contracting parties or treaty parties. The easiest, right? Like this is almost like to put it into corporate law.

These are sophisticated parties. So we hold them to their contract terms, basically, because we both know they negotiated the contract with all the lawyers and all the money and all the sophistication. Another way to look at it would be hyper violent litigation. Well, yeah, literally. Where they're both bound by certain rules. Now, interestingly enough, we haven't had one of those fights for a very long time, arguably since, and this might surprise some people, the fight with Nazi Germany. There were ways in which Nazi Germany and the Western allies, not perfectly, but as a general matter, complied with the law of armed conflict in a way that, for example, Nazi Germany and the Soviet Union did not. And so that would include, you know, it was a norm in international conflict is, for example, you don't shoot medics or you don't shoot medical things that are clearly marked medical. So why is it that, so for example, you might see a Black Hawk helicopter with a red cross on it.

Doesn't that make it more, hey, look, a red cross. But in the, or why would these medics have these armbands? Well, when you're fighting a contracting party or a treaty partner, that's supposed to be a don't shoot. And there's stories throughout World War II of that being complied with, and then blind rage and fury erupting when, say, Allied soldiers would see German soldiers shooting at their medics. Because that was not supposed to happen. Then you're going to have war between nation states that might not be contracting parties. And in that circumstance, you still have obligations.

It's just there is a there is a specific of it as a, rather than your full federal rules of evidence, you kind of have like the summary procedures of an arbitration. And there's just going to be, there's going to be a floor of behavior that applies to you, even if the other side, even if the other side is not bound itself to the law of war, there's still certain principles that are going to apply to you. And then the third and lowest tier is when you're involved with fighting a non-state actor that doesn't have any compliance with the laws of war at all. And we'll walk through that.

There's still going to be a basic humanitarian floor that applies to you. But as a general matter, this is the most difficult from a legal standpoint. This is by far the most difficult form of conflict because one of the fundamental things that non-state actors do, that even law of war violating, well, one thing that non-state actors fail to do, that even law of war violating countries like Japan did do is they violate the principle of what's called distinction. They don't wear uniforms. They blend into the civilian population. They use civilian vehicles.

So if you were in World War II and you're fighting a Japanese Zero, you have no question that that is a Japanese aircraft. Or if you're shooting at a Japanese tank, you have no question that's a Japanese tank. But in this kind of warfare, you might have three Toyota Tacomas approaching you. And one of them is a terrorist, is full of terrorists, and the other two has got a family in it. And so that's where it gets very very difficult and one of the things ways that the law of war tries to punish that because the law of war does not want warfare to devolve into that kind of situation is by creating a situation where if you're caught as an ununiformed combatant, it's a worse deal for you. It's not as if you can be mistreated.

But all of the laws, rules, and regulations covering prisoners of war are not then locking in and protecting you to the same degree. And it used to be, Sarah, that if you were a partisan or a guerrilla fighter and you were captured not in a uniform blending in the civilians, summary execution was permissible. And we don't do that now. We don't do that now. But the law of war presently really struggles with how does it bind a combatant like the United States or Israel in a humanitarian way while still disincentivizing Hamas or Al-Qaeda or ISIS from just completely blending in

with the civilian population. All right. So at this point, what are Israel's options? A good way to look at it is, and there's a great podcast on urban siege warfare. Don't know how many times you've heard that phrase. There's a great podcast on urban siege warfare. But there's a great podcast on urban siege warfare by John Spencer, who teaches urban warfare at West Point. And essentially, the way you look

at it is the law of war is not optional. In other words, the United States has to comply with it. Israel has to comply with it. So the question is, how do you accomplish this mission while complying with the law of war. And the basic obligations, there's the law of land warfare manual, field manual. We can put a link to it in the show notes if you are an absolute super nerd. But it's hundreds of pages that are basically articulating five principles. So these are the five non-optional principles that have to inform your strategy. One is military necessity. That is, it's the use of all measures required to defeat the enemy as quickly and efficiently as possible that are not prohibited. So in other words, military necessity is what gives you the impetus to, it gives you the, it empowers you to

fight, but only in such a way as to accomplish the military necessity and no further. Then there's humanity. So this is your basis of protection for civilian, forbids inflicting unnecessary suffering, injury, damage that's not connected to the legitimate military purpose. Then here's one that you might laugh, but honor, there's sort of a required

a certain amount of fairness and mutual respect. So in other words, if somebody is wounded or if somebody is trying to, you believe they're trying to surrender, there's a certain degree of fairness that locks in. Then there's distinction. And this means you have to distinguish between civilian and military objectives and civilian and military objects in the fight. And then this last one is the most

misunderstood, and it's proportionality. Now, a lot of people hear proportionality, and they might see, well, the Palestinians suffered more casualties than the Israelis, or the Palestinians suffered more damage than the Israelis. This is not a rule that says if one person is killed, it's disproportionate if two people are killed in response. Or this is not a rule that says if you shoot at me with a rifle, I have to shoot back to you with a rifle. It's essentially a rule that says the force that I use cannot be more

force than is necessary to accomplish the objective. So if all the jihadists are in one building, you can attack that building. You can't just decide, well, there's a building in a village, I'm going to blow up the whole village to get the building, if that makes sense. And so these are non-optional obligations that confront Israel as it is starting to push into Gaza. I want to, I guess, then take a little side jaunt, if you will, to what happens when you capture Hamas fighters. Yeah. And what are the obligations? And I want to take this little jaunt down memory lane to Ex Parte Kirin, which is one of my favorite stories. That sounds weird, but you know what I mean.

Yeah, I know what you mean. Interesting stories. Yes. Not like a bedtime story. Although I will say it's bedtime stories. So our three-year-old overheard us and you've sort of, three-year-olds are hard, right? Sometimes they're not listening at all. Sometimes they can't follow what you're saying. And sometimes they're like, what's Hamas, mommy?

Uh-oh. Right. Exactly. So I had that conversation with a three-year-old yesterday. Really easy, actually, by the way, in the moment, I was like, oh, they're the bad guys. Yeah. And he was like, bad guys. He understands bad guys. I think he was interested because he thought we were talking about hummus. And he does like hummus.

Well, that, you know, he's going to be torn on his love for hummus until this is all straightened out. He's going to need to learn to spell, basically, because it's pretty hard dialectically to tell the difference. because it's pretty hard dialectically to tell the difference. We're definitely in the phase where we are spelling out multiple words per sentence so that if you were, as an adult, trying to follow our conversation, it would actually be pretty hard. I don't know about you,

but I find spelling out words really hard to understand. Like when someone spells out a word for you, you're like, oh, hold on. I need to write it in my head to understand what we're talking about. Yeah, and if it's too long, I just zone out. Exactly. No, I'm keeping it pretty like K-I-L-L-D-I-E.

Like all of those words I'm spelling out right now. Anyway, sorry, ex parte Kieran. So this is the, for those who are not familiar with ex parte Kieran, you basically skip, when you're talking about military tribunals, from the Civil War and Lincoln type stuff to Ex Parte Kirin,

if you're just like sort of dashing about in law school on these topics. These are the Nazi saboteurs. And there's eight of them. They land in the US with plans to just cause terror throughout the country, blow up Jewish-owned shops. They have a lot of money. They've got a lot of explosives.

But there's a few points that are particularly interesting slash fun to me, David. So first of all, they're dropped off in a U-boat like it's an Uber. Yeah. Wearing their Nazi uniforms for exactly the reason that you just talked about. Yeah. That if they got caught, they wanted to be treated as prisoners of war, not as spies. Right. But now they're on the beach.

They made it to shore. I don't know how they thought they were, whatever. So, they take off their uniforms and bury them in the shores of New Jersey

or wherever they land. And, again, there's eight of them. So, the leader basically calls his lieutenant leader dude to a hotel room with the window open

and says, I want to talk to you. And if we disagree, only one of us walks out of this room and the other one flies out the window. Now, first of all, starting a conversation like that, high stakes. Yeah. And he basically says, I hate Nazis.

This whole plan, like, we made it to the United States. Let's turn ourselves in. And oddly, his friend is like, great plan. So they bring, you know, bring, bring the FBI. Hi, I'm a Nazi spy agent saboteur

and I've come here with a lot of money and plans to blow up stuff. And the FBI agent's like, yeah, thanks for the phone call, dude, and hangs up on him. So then they take a train to DC and show up with the cash, with the explosives. They're like, no, really, we are Nazi saboteur spy agents. We're telling you. So this time they believe him. They inform, obviously, on the other six. The other six are arrested.

And the legal case becomes interesting on whether they need to be tried in civilian court, whether they'll be tried as military tribunal. There's a little plaque in the Department of Justice, in Maine Justice, commemorating, I don't know what the right term is for that yeah discussing that ex parte kieran was tried in this room basically in the end and i want to talk about the military tribunal civil tribunal all of that stuff with you but um just for those

looking for what happens at the end of ex parte Cure and in this little story. So they're all sentenced to death. Yep. Truman commutes the sentence of the two guys who turn themselves in. And the other six are electrocuted in the electric chair. And then six years later, so that's 1942. So 1948, Truman then basically deports those two dudes over to American-occupied Germany. And they live out their lives there.

And the one dude, according to Wikipedia at least, lives a really long time. He only died in 1992. He was 89 years old. Wow. The one who called the meeting and said one of us is walking out of this room? Yeah. Yeah.

Okay, so that's Expartake, Kieran. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame

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frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's A-U-R-A-Frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. So, David, ex parte Kieran, when you catch these Hamas dudes, you know, if this were the United States, for instance, is this a military tribunal or a civil trial?

And isn't this the story of Gitmo? So I'm so glad you brought this up because this is a great way of distinguishing between when you're fighting someone who's in compliance with the laws of war versus you capture somebody who's out of compliance. In compliance, if they had just stated their Nazi uniforms, for example, stormed the beach with a few grenades and their rifle,

and then just put their hands up as soon as the cops arrived. Because they were in uniform and because it was a quote-unquote invasion, they would just be regular POWs. And a regular POW, when hostility sees, it's not a crime to be a uniformed member of an enemy military. So when you're captured, you're interned under humanitarian conditions for the duration of the hostilities, and then you're supposed to be released.

So because you haven't committed a crime by fighting as a uniformed member of opposing army, then it should all be over. But the military tribunal issue says, you fighting, you not being in a uniform, you violating the laws of war means that you're an unlawful combatant. And then we can punish you for that by extended imprisonment or even death, even though hostilities may at some point cease. We can punish you for that crime.

And so that's the Gitmo situation. Yeah, so I want to break this down a little bit more historically as well. Okay, so if you were an American, for instance, so some of the Kirin guys were Americans, so they're guilty of treason. Right. That you can try in civilian court. Yes, yes.

An American citizen who puts on, yes, absolutely. Absolutely. Then in theory, if they'd worn their uniforms, they'd be POWs, like you said. Totally different. Can't try them for anything. Well, not just for wearing the uniform and having plans to hurt you. No, you cannot try someone for wearing a uniform in a state of declared war against an enemy sovereign country and that they want to invade your country. That's what enemies do.

That's the point. Right. Yeah. Okay. So now we've got this third category, which is you are a foreign national. You're not in uniform. You're not then, you know, quote unquote, protected by the laws of war. So obviously that's the get most situation.

Yeah. That's, well, if Hamas had done this to the United States, whatever, that would be the Hamas situation. Real quick though, we talked about the civil war, why this was so controversial then to have military tribunals for Confederates. Well, you know, the civil war, it was really interesting because Lincoln did not want to grant the Confederacy what you would call belligerent status. Right, because they weren't their own country waging war. They were rebels. They were rebels. They were Americans. They didn't have the right to secede. But that gets legally complicated. Very. So here's essentially what the Union and the Confederacy did. So the Confederacy,

of course, they view themselves as a belligerent power. They've declared independence, they have a uniformed military, et cetera. So essentially what ended up happening, and can I just give a caveat? I know we have a lot of military historians who listen and a number of jags. All of this is high level. There's, I know there's nuances, but so here's high level. So essentially, Lincoln doesn't want to grant sort of belligerent power status to the Confederacy. At the same time, he doesn't want the war to devolve into savagery, right?

So what essentially happens is that the Union and the Confederacy sort of de facto treat themselves as belligerent powers without the formal granting of belligerent power status. So they largely, although no war has ever been completely fought within the laws of war, it was largely fought within the acknowledged rules of land warfare at the time, but without that formal recognition of belligerent status. And so you would have things like prisoner exchanges on occasion, or you would have communication between opposing generals. You would have the temporary truces. You had the uniforms that people wore. It was fought under broadly under these 19th century standards

of the law of land warfare, but there was never that formal acknowledgement of belligerent status. Okay. So we get to ex parte here and now we're back in 1942. Roosevelt's like, nah dog to the civil trial idea. Right. And he's like, this is going to be a military tribunal.

That's what's held on the fifth floor of main justice. That's the plaque you can go see. Which it just, I don't know, it gave me the shivers every time I walked by the plaque you can go see um which it just i don't know like gave me the shivers every time i walked by the plaque because it's um you're sort of i don't know reminded the building that you're in and the decisions that get made and all of that stuff that's you know again very interesting but what's the benefit in that case for instance why did you

want the military tribunal and ex parte kieran? Of course, this becomes a famous case because the Supreme Court upholds the United States' ability to try them by military tribunal in the case called ex parte Kieran, if you haven't figured that out. Yeah. Well, you know, a military tribunal has a number of advantages. One of them is that it's essentially conducted under the rules the military sets according to procedures that the military sets, according to rules of evidence that, for example, can permit the military to retain and restrict access to classified information about military maneuvers, et cetera, et cetera. Can I ask an overly detailed question? Like, in a military tribunal, what are the hearsay rules?

Well, see, that's the thing, Sarah. I used to know that off the top of my head, for example, what would happen at Gitmo. But that's, it's up to the military, largely. So that's one of the key distinctions with the military tribunal. I could just imagine, like, in civil, sorry, civil courts,

meaning criminal courts under our civil system, you know, the hearsay stuff is going to be pretty extreme in a criminal case. Yeah, and let me, unless somebody says, well, a military tribunal sounds like inherently violative of fundamental due process rights. Let me put it this way. The ability to investigate a crime in a war zone

to provide evidence sufficient to meet standards, say, in a federal criminal trial is nil. You know, when we were dealing with al Qaeda terrorists in Iraq, and let's say that we've had a massive firefight in a village 10 kilometers away, and we think we cleared it out of al Qaeda, it's not like all of a sudden the crime scene team can descend upon that, right? Here comes the FBI, let's put up the crime tape. Let's do all our ballistics. Now, there are certain circumstances where ballistics and things like that get done, but usually I'm in a circumstance where we're very confident

that we have control of that area. And so in a war zone, this ability to kind of create a case against somebody in the same way that you create a case against a member of the mob, it's just night and day, the difference. And so the military tribunal is reflective of the conditions under which evidence can be gathered and used. And so nobody wants, let me put it this way, as a general matter, people don't want there to have to be military tribunals. They want this to be fought under the laws of armed conflict and have people treated as POWs, et cetera. But there has to be some

mechanism for dealing with people as a matter of law who are caught on the battlefield, not in uniform, in violation of the laws of armed conflict. And then also, Sarah, a lot of these fights with these terrorist entities, how do you define the secession of hostilities? Because it's not as if Al-Qaeda says, okay, let's meet on the decks of the USS Missouri, sign the deal and end this thing. You're fighting an amorphous non-state entity that's motivated by an ideology that never fully goes away. And so how do you, do you just detain somebody forever and ever and ever? Or do you have a process that says, well, here's a set kind of punishment for the conduct you've engaged in? And indeed, we're learning that in Gitmo now.

Here we are. Okay, but let's now move to Russia and Ukraine for a second. That's a traditional war, correct? Yes, it is. So POW status, all of that stuff. It should attach. Now, you know, Russia, let's just say its record of compliance with the law of land warfare is pretty sketchy. So that's where we get to how I think international law doesn't exist, because it only exists to the extent someone wants it to. It's in your mind.

Well, it exists if you win. Yeah, but then it didn't exist. You see what I'm saying? If it only exists if you won, then it was just whatever you wanted when you won. You see what I'm saying? If it only exists if you won, then it was just whatever you wanted when you won. Well, yes, true. However, it certainly exists if you're swinging at the end of the rope

after you've been convicted of violating these specific standards. So if you look at, for example, the Nuremberg trials, Nuremberg, although there was a lot of contemporary criticism of it as kind of, as quote, victor's justice, and maybe a lot of contemporary criticism is an overstatement, there was contemporary criticism. I don't think there's a huge outcry against the trials against these Nazi figures or, you know, but they were, the Allies were applying recognized principles. In other words, it's not as if the Nazis could say, oh my gosh, I had no idea I couldn't do this. What are you, you just made this standard up.

the Nazis never would have faced, of course, had they won, it was applying recognized standards. There was no, that's why the main defense of the Nazis was I was following orders versus this wasn't wrong in the first place. So there were, there are definitely still recognized standards, but you're right. If the Russians win, then of course, it would take a change in Russian law, like some sort of democratic revolution where they decided to apply Russian law. But yeah, you're absolutely right. But all law is like that to an extent. I know this gets the philosophy of law, which oddly, I'm not into at all. I'm not into philosophy for this reason because I find reality so much more interesting than you like really high level philosophy. Like what is law?

Does it exist? No, of course not. But for men. Yeah. There's no law of nature or rather that's the point. The law of nature is there's no law of nature or rather that's the point the law of nature is there is no law but law of war seems particularly uh might makes right and then those who win may decide that they want to institute said international law fair enough but it's still their choice if you will

yeah you know i mean again we're getting into one of the things that the rule of law depends. You can't have a rule of law without a state monopoly on violence, for example. So at some level, there has to be. That's why, you know, if you talk to go to a libertarian convention, you'll always hear something like the law always exists at the end of the point of the bayonet. There is at the ultimate end of any legal code sort of state coercion. So you do have to have the ability to impose a legal remedy. But, Sarah, before we move on to this, because we've got SCOTUS to cover, because we've got SCOTUS to cover. Can I make it super practical and sort of help listeners understand the controversies

that are going to erupt without question? Yes, the remaining time is yours. Go. So all of that's super high level, but you're going to hear a lot of very specific complaints against the IDF in particular. We already know that Hamas does not comply with the law of war. Everything that you just saw happen over the last three or four

days are war crimes. It's just war crime after war crime, after war crime, after war crime, and nobody serious on this earth disputes that. And the fastest way to know if somebody is not serious on this earth is if they say, well, Hamas did was not war crimes. So that does not mean that Israel can commit war crimes in response. It does give Israel the authority under the law of war to respond, to defeat Hamas. And Hamas has embedded itself in the civilian population, war crime. And Hamas uses civilian structures and buildings to defend itself while in Gaza, war crime. So you're going to see Israel doing things like blowing up banks. You might see it burning. You might see an airstrike on a mosque. You will see stories of Israeli bombs hitting maybe even hospitals. Now, it's possible that an Israeli

soldier could intentionally target a civilian structure, committing a war crime themselves with no foundation. Things like that happen. We've had isolated instances of American soldiers, for example, intentionally killing civilians during the war on terror. But as a general matter, what happens is that hamas is fully aware of the protected status of civilian buildings and especially the protected status of buildings like hospitals and schools and mosques and they will intentionally locate themselves in those buildings because the buildings what happens is there's a rebuttable presumption that those are protected. So in other words, if you're in that building, you aren't safe unless Israel knows that you're Hamas fighter in that building, unless you let them know by firing at Israeli soldiers from that building. But in the instant you use the protected building for military purposes, it loses its protection.

And so a lot of people just don't know this. They don't know this at all. And then the media doesn't really help provide helpful context. They might say, this is an Israeli airstrike against the third national bank of Gaza, or this is an Israeli airstrike against the, you know, third mosque of Gaza Street or whatever. And they won't say responding to gunfire from Israeli ordered an airstrike, Israel ordered an airstrike. So that is very important for people to understand. And then there's another concept that's really important for people to understand, because

you will look at some of these cities after, say, the U.S. went into Fallujah, or the U.S. and its allies went into Mosul, and the before and after pictures are sometimes shocking, the devastation of the city. And you say, how can the United States have complied with the laws of war when it leveled Fallujah? Well, I'll introduce you to a term, Sarah. It's called spider webbing. So let's say you have 10 jihadists in one house and you drop a precision weapon on that one house. Well, it might kill three jihadists.

There's seven left. Three go to another house and four go to another house. Well, then those are seven jihadists are firing back from two houses. Well, you precisely target those two houses, get some of them, maybe they then scatter the diminished number to three houses. And you see how it works as the jihadists move from house to house to house, to location, to location, to location. Each new location becomes a legitimate military target and the end result looks like something out of world war ii but each individual engagement is justified by the law of war

it is the end result of all of those many many many many engagements that the end of the fight turns mozul say for example into a moonscape or Raqqa. And you can just see these images online, but at no point were you violating the laws of war by engaging these jihadists. And I wish there was more discussion of this because we're about to get a lot of propaganda out of Gaza saying, look at all these civilian targets that Israel is targeting. And always the question is, is Hamas there? Are Hamas munitions there?

Is that a Hamas communications node? Because if Hamas is there, it's not a civilian target anymore. It might have bank on it. It might have a Red Cross on it. It might have a crescent on it. It's just not civilian anymore as. It might have bank on it. It might have a Red Cross on it. It might have a crescent on it. It's just not civilian anymore as soon as Hamas uses it. All right. Should we do some Supreme Court?

Let's do it. The stakes are a little lower. I'll just start off right there. A little lower, yes, but there are still stakes. Yeah, and the stakes are interesting. All right. So I want to start with Atchison Hotel. This is the ADA case that we had talked about,

about testers, right? Yeah. So Deborah Laufer in this case has filed 600 lawsuits against hotels, mostly bed and breakfast, little inns, for not complying with the ADA. And this case came up as a question of what counts for Article 3 standing for injury? Is it that she was able to find an in that did not comply with

the ADA on their website? Or does it need to be something more? You actually want to visit that in or have any intention of going there and you know last time we talked about this david before the argument we compared this a little to the 303 creative problem right yeah like what's real you don't have a business yet yeah um but if you wanted to start a business you know this law would prevent me from doing so. Now, in the 303 Creative case, she said she would start a business. In the Lawfer case, she all but conceded that she had no intention of visiting that hotel. But in the argument, all of this gets more complicated, more interesting, and more weird. And really in the run-up to the argument as well, this whole case got odd. So weird.

So weird. Okay, so let's start with just some of the really specific facts. When you go to a hotel's website to make a reservation for a room, according to the ADA, that website needs to tell you what accommodations are available for people with various disabilities. for people with various disabilities. The hotel in question did not have that on their website. So when Deborah Laufer was just like going around to various hotels, she finds this, it's not in compliance.

Okay. Now, she sues. What happens after that? So not first. I'm just going to like, in no particular order, things that happen. This case. Atchison Hotel changes their website to be in compliance.

Yep. They also end up under new ownership. This case, CERT is filed to the Supreme Court by Atchison Hotel. Lawfer also says that she wants the court to grant cert. Then her lawyer gets in some heat because it turns out he's been filing these cases with all sorts of like not telling his clients things, not telling them about settlement offers, all of this stuff.

So after Acheson, after the court grants cert and after Atchison files their first brief Lawford gets new counsel dismisses the lower court case and says

never mind dig this case it's moot now the case in controversy is dead okay so this winds up at the Supreme Court now because they already granted cert. And now you've got weird questions here. Is this case moot? Or does she lack standing? And which one do you need to do first? That's the first question the court has to decide because they're both article three questions. Now, you had some members of the court clearly believing that you get to mootness first, not because you have to as a matter of law or federal courts, but because it's easier.

Yes. It's just so much simpler. But you have, for instance, the chief Justice saying, well, wait a second. If we say that this is moot, as in no longer a live controversy, that implies that it ever was a live controversy. So therefore, we have to get to the standing question because if she wasn't injured, then there was never a case or controversy. And therefore, it can't become moot because it never existed to begin with. That's high philosophy in my view. So you've got this preliminary question that they're going to have to decide

on mootness versus standing. So David, I'm going to start with that. Mootness versus standing, how do you feel? You know, it's a great question. I'm torn on it. I'm torn on it. And I kind of move towards mootness for a couple of reasons. One is, it's easier. No, that's a terrible, literally. I know. But So I do move towards, I kind of lean inclined because it is actually easier. It is so funny, Sarah.

There are people in the comments who are like begging us to have a standing expert on the podcast and just begging us because it's not you really. It's me that particularly frustrates them about standing because they think I'm all over the place on it. And I think, and I kind of am. But I don't- So is the court.

I know, but we do need, it would be fun to have like a, just an absolute unquestioned, and I've reached out, I've got one percolating. We'll circle back. But yeah, the mootness issue is much simpler. But as the advocate pointed out, saving judicial resources in what sense? Yes, it would be saving the Supreme Court's judicial resources because it would be easier for these

nine justices to decide on mootness. But you've got a problem at the lower court when you're having 600 cases filed. And as you pointed out in a practical sense, what happens is the vast majority of these cases settle. So they never end up with appellate review. So they don't come up to the Supreme Court. And so you're not going to actually resolve the underlying issue about the standing question. And so then you're going to have 600 district judges having to deal with this. So you're not saving judicial resources if you look at it across the federal judiciary. You're just saving some of the Supreme Court justices time,

which frankly, they're not taking enough cases anyway. They've got time. They absolutely know. I'm with you, Sarah. I see the problem. That's such a compound answer. I know. But here, I like the way both Alito and Kagan stated this. And the question is, is this the most use of the word dead in any case not involving an actual fatality?

It was a lot of dead. Or as we say in my house, D-E-A-D. Yeah. So if you're telling me I'm a cop out, I'm just right there with spicy Samuel Alito because he said it would be helpful, right, for the court to provide guidance on the issue. But the case before us, he says, is dead as a doornail. And then Kagan said, the case is dead, dead, dead, and all the ways that something can be dead. Why do you think doornail became the thing that we refer to as dead? Doornails were never alive, so they're not dead. That's a great, you know what?

That's A, a great question. And B, what? Five, four, three, two, one, before somebody is literally typing an email right now. So I look forward to that. Or please put it in the comments if you don't have our emails.

Somebody's got the answer. All right. So that's the first question they're going to have to resolve. But when they got to the lawyer now representing Deborah Laufer, and by the way, the Solicitor General's office was involved in this as well. Then it really did get to this standing question. Okay. Was she actually injured? And this was so interesting as well. Then it really did get to this standing question. Okay. Was she actually injured? And this was so interesting as well, because I went into this, David, like guns blazing, not injured. Yeah. And I left, I would still vote that she wasn't injured and I'll explain why, but it was a closer call than I went in thinking her lawyer did some work on me. I will grant you. So I mentioned, right, that it's at the reservation point on the website that they need to provide

information about accommodation. And so you end up with all of these. It's sort of like your tech stuff, David, where you're like, you need real life analogies for people in the physical world to sort of understand this. And so the analogy that kept being sort of tossed about is going to be something like a lunch counter example for good reason, right? Because that's sort of where our discrimination laws, rules, and precedents come from at their nut. So, you know, you're on the sidewalk or you're driving by and you see a place. Um, and let's say it doesn't have a ramp or something. And so the one person is like,

well, it doesn't have a ramp and they drive away. And the second person sees there's not a ramp. They get out of their car and they're like, I would like to come to this business, but there's no ramp. So I can't come. Is there really a difference in who was discriminated against? Just because you drove away and you didn't actually make the attempt, you still couldn't go in. You looked, you saw there wasn't a ramp. And is that analogous here where she had no intention of going to the hotel,

but as her lawyer pointed out as well, someone who actually has the intention of going to the hotel. But as her lawyer pointed out as well, someone who actually has the intention of going to the hotel goes, sees that there's no accessibility information. They don't actually have the time to file a lawsuit, get the injunction, get the website updated, and then make their reservation for the trip that they were planning on taking next month. So you want to talk about something that never gets resolved. next month. So you want to talk about something that never gets resolved. Like you need the testers, so to speak, to actually be doing this. And is there discrimination sort of in fact, in person? Is the discrimination stigmatic? Meaning when you go to that website and you find that they're not telling you the information that you need, that is the discrimination. And see, that's where I'm like, well, wait, this would be different if, for instance, the website was supposed to have

something if you're hearing impaired. And so it was actually the act of visiting the website that discriminated against you. But this is about a room. It's about when you show up. It's about information in the reservation. So what is the injury? How does one get injured? All of that stuff became actually pretty interesting. I thought it was interesting as well. Another analogy would be like, imagine you and Scott are saying, let's go for Italian tonight. And you get in the car and you're going to your local Italian place and you pass a Mexican restaurant and it says no women allowed on the sign. And then you file suit because it bans women.

And the first thing the lawyer questioned you on cross-examination, Sarah Isger, were you or were you not going for Italian that night? Right. You know, and so that is I was with you. It was much more interesting than I thought it was going to be. And so, for instance, the lawyer for Atchison Hotel, he, of course, wants the most sort of extreme version of the test. And his point is, you need to have plans to go to the place, not necessarily the specific hotel, but you need to have plans, you know, for instance,

to be visiting Washington, D.C. And then you're looking for hotels in Washington, D.C. That could give you standing in this case. And Justice Sotomayor is like, okay. And this gives you some insight into Justice Sotomayor's travel plans, travel planning. It's not mine. She's like, like most people, what if you're not sure where you want to go? So you're just looking at a whole lot of places that you might go visit. I'm like, what? You might go to D.C, you might go to Philly, you might go to New York. And so you're searching around. And he's like, no, that's not enough. That's just sort of a generalized thought about maybe you'll travel someday. I think I would have answered it a little different. which of these three major cities you want to visit. That's one thing. But that's still not what she was doing here.

Interestingly, David, after all this, so she lives out in, I'm going to get this slightly wrong, but like Oregon, and this hotel is in Maine. And again, she's done 600 of these lawsuits. She's never been to these places. After the district court finds that there was no credible argument that she ever planned to

visit Atchison Hotel when she went to the website to, you know, look at their reservation page. She then, after all of that, takes a road trip to Maine. A road trip from Oregon to Maine? I guess so. Yeah, yeah. Wow. She's in a wheelchair. She has multiple sclerosis. Yeah. Anyway, so that's interesting.

But, you know, this was also something that was brought up by one of the justices. Okay, but, you know, let's use your analogy, David. I drive by. I see the Mexican restaurant that says no women allowed. I don't want to go to that restaurant now. I want to sue them for discrimination because I am discriminated against stigmatically by that. But to be clear, even if they were like, okay, we understand we have to change that sign. I don't want to go to the restaurant that wanted to discriminate against women. So it also maybe can't be the case that you need to say that you now want to stay at the place. And this was brought up by Justice Barrett. Now, the problem is you only get injunctive relief. So it kind of does have to be forward facing.

But it gets to this question of what is discrimination? Because it is not only not having a ramp and so you can't get up there. They mentioned the lunch counter example. The folks sitting at the lunch counter didn't want to order anything. They wanted to see whether they could sit at the lunch counter example. The folks sitting at the lunch counter didn't want to order anything. They wanted to see whether they could sit at the lunch counter. They were clearly being discriminated against. You don't need to then interrogate them on like what turkey sandwich they were going to order.

No turkey sandwich. But we all agree that was still obviously discrimination. Yeah, it's like I said, it is a much closer case than I thought, which means, Sarah, come over to the dark side of mootness because it's easier. Nope, nope, nope, nope. Nope, it's easier, Sarah. All right, so as far as where the justices were, Justice Sotomayor wants the case to be moot.

And if it's not moot, the most lenient testing standard. moot, the most lenient testing standard. On the other side, Chief Justice Roberts decides standing not mootness, and the standing bar is high. And then everyone else kind of fell in between. Even Justice Kagan very much seemed to be falling in between these two poles. So it'll be interesting to see where that turns out. Won't be surprised to see either the chief or Sotomayor writing this one, since they seem to sort of have the most fully formed, strongest opinions. All right, CFPB time.

So this was interesting, right? So to remind everyone, the CFPB, the Consumer Financial Protection Bureau, is funded by a law passed by Congress that says that they will get their money through the Federal Reserve rather than the normal appropriations process. The Fifth Circuit held that that violated article 1 section 9 of the constitution the appropriations clause quote no money shall be withdrawn from the treasury but in consequence of appropriations made by law so on the one hand it was made by law Congress, that you'd get your money from the Federal Reserve, which also is appropriated by Congress, not yearly either, sort of a standing appropriation, if you will. On the other hand, what does appropriation mean if not Congress has to actually, quote, do its job. So you had, I thought, some good hypotheticals, extreme examples being thrown

out, for instance, by Justice Gorsuch. Could Congress, for instance, appropriate the executive branch with $1 trillion? You can't spend more than a trillion dollars, President Biden, when, for instance, the Democrats have the White dollars, President Biden, when, for instance, the Democrats have the White House, the House, and the Senate. Do you have up to a trillion dollars to run the entire executive branch? Wiping my hands, I'm done with appropriation. That's right. Would that be in compliance with Article 1, Section 9, the Appropriations Clause? On the other side, could Congress appropriate zero for something under law? Would we say that that was appropriating money?

And everything in between, you had Elizabeth Prelogger, the U.S. Solicitor General, arguing this. I think you can guess which side she's on. The CFPB has been appropriated money in compliance with the law. And then you had Noel Francisco, former Solicitor General, arguing to try to uphold that Fifth Circuit opinion.

David, what was interesting? Where do you come down? Yada, yada, yada. Yeah. I mean, it's one of those things where I like it. The more extreme the example it gets, the sort of more clear the issue becomes. But at the same time, we're not dealing with an extreme example. So, you know, so for example, if you had Congress that said, be it resolved that it is difficult to pass individual appropriation bills while also appearing on Fox News and MSNBC, and be it also resolved that we'd rather fight about the stupid things we spend most of our time fighting about and don't spend enough time doing that. We shall hereby allocate a $1 trillion spending cap to the president in perpetuity. Well, then you would say, oh, come on, right? Here, it's a very

small spending cap, as was, I forget which justice said it, it's a rounding error in the federal budget, like $600 million. I think it was Kagan. Yeah. Yeah, $600 million. So you have a very small spending cap allocated in a very specific way. And so it's much more instead of, oh, come, you know, the answer is,

oh, come on with all of these extreme examples. We're talking about a very bite-sized spending allocation that would be resting within a larger delegation of Congress that does not sort of upset in any meaningful or material way the appropriation structure for which there are specific reasons why we want to grant a degree of independence here. We want to grant a degree of independence here. But I guess, Sarah, where I'm having a hard time is if it's difficult to articulate any other limiting principle other than, well, this is pretty harmless, that's where I begin to struggle a little bit. Well, but let me push back on that. So to go to our text history and tradition test. Oh boy, my favorite. Okay. We start with the text, right? And I think that's what you're talking about. I think that's, you run that conversation as far as it can go. What does

appropriation mean? What are the extremes of the definition of appropriation? Can we live with those extremes? Where does this fall? All of that. But when you get to history in that sort of original public meaning, how did the founders or the ratifiers think of Article I, Section 9, and we look at some examples, this is where Prelogger's argument was at her strongest.

And by the way, something she's really excelled at, I think, is arguing originalism to this court. She's coming up strong with the Customs Office. So the U.S. Customs Office, one of the most powerful agencies in the very earliest days of the American Republic. And it had a standing appropriation also. Womp womp.

Yeah. But David, I totally agree with your point that like, well, wait, if according to this theory, it has no limiting principle and you simply could have a politically aligned Congress try to give the executive branch all the money to do whatever it wants with no appropriation and we know that would violate Article 1, Section 9 just in our guts, try to give the executive branch all the money to do whatever it wants with no appropriation,

and we know that would violate Article 1, Section 9 just in our guts, then it probably shouldn't make us sleep all that well at night that like, yeah, but this isn't that. Right, right, exactly. That's what I keep getting wrapped up in is, is there a constitutional doctrine of kind of harmless error? In other words, it's just not that big a deal, right? This is just not that big a deal. But then the other question is remedy, right? So there's sort of constitutionality and then remedy. And that's where I would come down and say, I don't know that voiding the appropriations,

don't know that voiding the appropriations, what it does is then sort of eliminates the legal effectiveness of rulings rendered under the unconstitutional appropriation. I don't know that that would be the right remedy, but because it would seem to me the remedy is appropriate the money, not that it just sort of renders the entire institution as if it is null and void and to no effect, in essence. So I think this case has a high potential to fall along ideological lines, at least sort of on the 3-3-3 way. Right. way. And by the way, there was a moment when Justice Gorsuch is arguing with the Solicitor General's office and basically they keep arguing the practical point and he keeps saying, I don't care about the practical point. And I was like, oh, my institutionalist axis, that's fun.

So I could see this being 6-3 either direction. Yeah, it was interesting. I mean, the Amy House summary, you know, really drilled down on that Kavanaugh and Barrett seemed maybe more sympathetic to Prelogger's argument than you might think, or I would say, than you might think if you haven't been paying attention. To advisory opinions. To advisory opinions. That's right. All right. Well, let's leave it there. Sounds good. David, I did have this funny moment. I was listening to the argument on a plane,

on the CFPB argument, and I drifted off, I will admit. What? on the CFPB argument and I drifted off, I will admit. What? Well, look, planes have lower oxygen, you know? And so when we got to altitude, I just have this problem all the time. I fall asleep on planes. There's not enough oxygen.

Oh, that's a blessing. Yeah, no, it's lovely. Although it's not good sleep. It's sort of like being under anesthesia where you wake up and you didn't actually sleep in the way that your brain is supposed to be cleared out. You just weren't conscious. That's sort of me sleeping on planes. It's not restful. But I get sort of jolted awake by Noel Francisco's

voice, who remember I worked with and have known for a very long time. I was very unclear where I was, what was happening, and why Noel wanted to talk to me about appropriations. happening and why Noel wanted to talk to me about appropriations. Yeah, there are really funny stories when you run into listeners about sometimes when and where they'll hear your voice. And I was talking to a listener once and we were at a gathering. He says, I have to tell you something pretty jolting. It is very jolting when I'm walking in my house and I hear your voice in my bedroom. With my spouse. I'm like, oh, listening to advisory opinions, of course. Also, so do you remember in our conversation

with Lisa Blatt and Sarah Harris, we talked about Jeff Wall? Yeah. And I made an offhand remark about how I didn't know Jeff was so emotionally available. So this has turned into a bit of a thing. And I think we have the same rules that we have at the Republican debate. If you get mentioned by another candidate, you get a 30-second rebuttal. So Jeff Wall has been invited on the podcast

to show us how emotionally available he is. He has accepted that invitation. Actually, he is going to come on the podcast in several weeks in November to talk about oral argument preparation because he is doing a whole lot of oral arguments back to back to back to back this fall. And I thought it'd be really interesting

if you've got one a week, how do you prepare? What is your methodology? And in the course of that conversation, I'll let the audience judge how emotionally available Jeff Wall is to his friends. So does he want to be emotionally available or not? I'm not even going to comment on that.

Because he might just come in like weeping on purpose to demonstrate his sensitivity. He disputes that he used the specific analogy, you know, when God closes a door, he opens a window. That's the part that I found sort of shocking coming from Jeff Wall. He says that's not what he said. Oh, okay. Wow. It was the gist, but it's not the words.

Right. I'm glad we have the rebuttal rule. It's a good rule. Yeah. So that's, we have that to look forward to as well. Jeff Wall, by the way, was acting solicitor general. He was Noel Francisco's number two in the SG's office and is the funniest human on the planet. So I think it will be as entertaining as the Lisa Blatt podcast, though maybe less on feminism, maybe more. I don't know. I enjoyed spectating during segments of that podcast. No, that was great. That was a lot of fun. I really enjoyed that. It was an that podcast. No, that was great. That was a lot of fun. I really enjoyed that. It was an amazing podcast.

I did get a tweet from some guy who saw me on Bill Maher this week that I was like a terrible woman for not taking more maternity leave time off and would just like to state for the record that old men telling me that I shouldn't have a choice because that limits other people's choices.

I was like, that's not how that works. Thanks for the, thanks for the feminist, you know? Yeah. Any dude weighing in with a terrible woman judgment is to be viewed with some degree of suspicion.

Yeah. Yeah. So that was fun. Um, but you know, hence the plane, Bill Maher's filmed out in LA and that was a lot of travel this weekend.

Yeah. All right. I'll see you in a couple days. Yes. See you soon. Bye, friends. you