Noah Feldman

An op-ed by Noah Feldman. We'll probably never know the accuracy of all the details in Seymour Hersh’s alternative account of the killing of Osama bin Laden. But Hersh’s version has enough verisimilitude that it calls for reconsidering what has always been the most troubling legal question, even under the official version of the event: Was the shooting of bin Laden proportionate and therefore justified under international law? Or was it, to put the matter bluntly, a war crime?

An op-ed by Noah Feldman. Ben Carson will never be president. (There, I’ve said it.) But his candidacy and the views associated with it aren't a joke; they’re an important reflection on the current state of American populist conservatism. That's why it's worth analyzing Carson’s recent comments suggesting that the president may not have to obey the U.S. Supreme Court's interpretation of the law.

An op-ed by Noah Feldman. Immigration is one of the great themes of the 2015 Venice Biennale -- which makes a lot of sense for the signature European art fair in an era when immigration is Europe’s most pressing political issue. But the most thought-provoking piece on the subject that I saw here in three days wasn’t actually in the festival. It was a temporary performance staged Wednesday morning near the entrance to the beautiful gardens where the national pavilions display their works. And it consisted of a single woman standing silently, staring ahead without moving -- a bit in the manner of the silent human statues you can see in New York's Central Park or London's Trafalgar Square, which for the most part don’t seem like good art at all. What made the woman extraordinary was her outfit. She was dressed in a full niqab -- not only a headscarf or cloak but both, her face covered except for a slit for each eye. And her niqab clearly wasn’t the ordinary niqab of a very observant Muslim woman. It was made out of yellow reflective cloth, with four bright reflective silver stripes, like those you’d see on a first-responder.

An op-ed by Noah Feldman: In a major vindication for Edward Snowden -- and a blow for the national security policy pursued by Republicans and Democrats alike -- the U.S. Court of Appeals for the Second Circuit ruled Thursday that the National Security Agency’s metadata collection program is unlawful. This is the most serious blow to date for the legacy of the USA Patriot Act and the surveillance overreach that followed 9/11. The central question depended on the meaning of the word "relevant": Was the government's collection relevant to an investigation when it collects all the metadata for any phone call made to or from anywhere in the U.S.? The court said no. That was the right decision -- not so much because it protects privacy, as because it broke the bad precedent of secret law created by the NSA and endorsed by the secret national security court known as the Foreign Intelligence Surveillance Court.

An op-ed by Noah Feldman: Reports of German spying on European corporate targets at the behest of the U.S. have led to calls that Chancellor Angela Merkel was hypocritical for complaining about U.S. spying on Germany. Well, yes -- but the hypocrisy of politicians hardly comes as a shock. What’s more striking about the recent revelations is their targets -- and what they say about U.S. government claims that it doesn’t spy on behalf of private U.S. corporations. Start with a rather obvious question: Why would the U.S. government rely on Germany to spy on European corporations? Why not just do the spying directly? It’s not as if the U.S. lacks the intelligence capacity to do it. After all, the U.S. spied directly on Merkel in the episode that made her object so strongly and publicly and hypocritically.

An op-ed by Noah Feldman. It was morally wrong for two men to attack an anti-Islam installation last weekend in Garland, Texas, and no one should mourn the death of these terrorists. But what about deliberately provoking the assault by staging a competition for the most insulting caricature of the Prophet Muhammad? Was that morally wrong? Or was it just a reasonable exercise of the right to free speech? It’s easy to be distracted by the condemnation of the crime, which should be absolute. No verbal provocation can justify killing. But it’s also easy to be distracted by the First Amendment.

An op-ed by Noah Feldman.Why is China announcing joint naval exercises with Russia in the Mediterranean, so far from home? There’s a global answer connected to the new cool war and China’s interest in responding to U.S. initiatives in the Pacific. But there’s also a more revealing local answer arriving from the nature of China’s growing involvement in the Middle East and North Africa. The global geopolitical explanation for the exercises, expected this month, is certainly interesting and distinctive. China’s military and security aims are primarily focused on the Pacific, and it can’t reasonably hope to compete with the U.S. or European powers in their own backyards. Yet China gains symbolic value from presenting itself as an increasingly global power.

An op-ed by Noah Feldman. Is there a guerrilla war under way against the death penalty? Justice Samuel Alito proposed the idea Wednesday when the U.S. Supreme Court heard oral arguments about the use of the drug midazolam while administering lethal injections. The answer, to put it bluntly, is yes: Death-penalty abolitionists, unable to persuade either the public or the courts to prohibit the death penalty absolutely, rely on all the legal means available to them. Their arguments before the court are politics by other means -- Clausewitz’s famous description of war.

An op-ed by Noah Feldman. It’s pretty unusual for oral arguments at the U.S. Supreme Court to be interrupted by a protester -- but that happened Tuesday during the gay-marriage case. As Solicitor General Donald Verrilli got up to make a pro-gay-marriage argument on behalf of the U.S., a protester called out, “If you support gay marriage, you will burn in hell!” Then he said, “It’s an abomination!” at which point he was forcibly removed from the courtroom. The official transcript records the protester's words only as “interruption,” but reporters in the room relayed the content. After the incident, Chief Justice John Roberts graciously asked Verrilli, “General, would you like to take a moment?” (The solicitor general is addressed as “General,” at the Supreme Court, if nowhere else.) Verrilli said he would, then said he was ready to proceed if the court was. Roberts replied, “Well, we’re ready. OK.” Justice Antonin Scalia then piped up: “It was rather refreshing, actually.” The official transcript records “laughter” in the room.

An op-ed by Noah Feldman. Chief Justice John Roberts isn't a politician -- and he wants you to know it. That's the message of a surprising 5-4 decision issued Wednesday by the U.S. Supreme Court in which Roberts provided the deciding vote. The court held that Florida may prohibit judges running for office from directly soliciting money from contributors. Ordinarily, as in the Citizens United decision, campaign-finance cases in the Roberts court go 5-4 the other way, and the court strikes down legal restrictions as violating free-speech. The other eight justices all voted consistently with their usual views. Only Roberts flipped in the judicial elections case -- and therein hangs an important tale about Roberts himself and the legacy he hopes to produce.

An op-ed by Noah Feldman. No one really believes that Tuesday's oral argument in the gay-marriage case, Obergefell v. Hodges, is an occasion for the justices to make up their minds about how they're going to vote. Rather, it's an exercise in making certain points, not so much to their colleagues as to the public. According to reports from the first section of the questioning, the justices had some messages they want you to hear. The first and most important came from Justice Anthony Kennedy, the swing vote and the man who has written the jurisprudence of gay rights for the past 20 years. Kennedy wanted to talk about time -- specifically, whether enough time has passed for gay marriage to become a fundamental right.

An op-ed by Noah Feldman. Predicting exactly what the justices will say at oral argument is a tricky business -- but predicting the reaction is more tractable. After the U.S. Supreme Court hears arguments in the gay-marriage cases Tuesday, you can expect a moment of serious anxiety among those who hope that the court is about to declare a fundamental constitutional right to marry the partner of one’s choice. The reason is simple: Justice Anthony Kennedy isn't going to declare from the bench how he’s going to rule. At least some questions from some justices are likely to raise the question of whether the court should decide the issue now or wait for some unspecified time. The result will be a feeling of letdown and nervousness among gay-marriage supporters. Because expectations are so high right now, anything short of a Supreme Court lovefest is going to produce a feeling of vertigo -- and the worry that perhaps, after all, Kennedy might not be ready to do the right thing.

An op-ed by Noah Feldman. Every weapons system, from the bow and arrow to the intercontinental ballistic missile, sometimes kills the wrong people. So why has the revelation that a U.S. drone strike accidentally killed two al-Qaeda hostages ­-- a U.S. citizen and an Italian aid worker -- created such a storm of drone “rethinking”? Part of the answer is that liberal critics of drone strikes, who’ve questioned their legality, are using the opportunity to repeat and reframe their criticisms. I’ve joined in some of that criticism in the past and stand by it. But the deeper reason for the renewed discussion is a pernicious myth: the fantasy that drones are uniquely precise.

The American Academy of Arts and Sciences today announced the election of 197 new members. They include some of the world’s most accomplished scholars, scientists, writers, and artists, and civic, business, and philanthropic leaders. Those elected from Harvard are...Noah R. Feldman, Felix Frankfurter Professor of Law, Harvard Law School.

An op-ed by Noah Feldman. Is it better to follow the strict letter of the law or to adjust it where appropriate to produce a more equitable result? This is one of the oldest questions in legal thought, one that can be traced back at least to Aristotle -- and on Wednesday the U.S. Supreme Court weighed in, 5-4, on the side of equity, with Justice Anthony Kennedy providing the deciding vote. Ordinarily, a decision like this one, involving the interpretation of the Federal Tort Claims Act would be of interest only to practitioners who are specialists in statutory interpretation. But this isn’t an ordinary spring. In June, the Supreme Court will hand down its most important statutory interpretation case in a generation, essentially deciding whether the Affordable Care Act will survive or fall.

An op-ed by Noah Feldman. Are nonhuman animals about to become legal persons? You might think so upon hearing about an order issued Tuesday by a New York trial judge that requires officials from the State University of New York at Stony Brook to appear and show cause why two chimpanzees, Hercules and Leo, should not be released from the facility where they are kept into the custody of Save the Chimps. After all, this order parallels a standard habeas corpus order, which normally requires a jailer to appear and show cause why someone who is detained should not be released under the law. At the top of the order, big as life, is a caption reading “Order to Show Cause and Habeas Corpus.” And the order says that the chimps should be released if there’s a finding that they’re “unlawfully detained.” Not so fast. What’s probably happening is a good deal more modest -- and more legally important than the never-ending debate about the ways chimps or other animals are like humans.

An op-ed by Noah Feldman. Are the past year’s examples of racially charged police abuses from Ferguson to Staten Island to North Charleston affecting the U.S. Supreme Court? In a subtle way, the answer may well be yes. In the first evidence of an effect, the Supreme Court held Tuesday that a traffic stop can't be prolonged beyond the time that the police need to perform their basic functions. In a 6-3 opinion, the court said that the police can't perform a canine drug-sniff after a ticket has been issued -- even though, a decade ago, it held that a drug sniff that occurs during a lawful stop is perfectly constitutional.

An op-ed by Noah Feldman. Should Bill and Denise Richard, who lost their 8-year-old son Martin in the Boston Marathon bombing, have a special say in whether Dzhokhar Tsarnaev gets the death penalt? The question goes beyond the family’s tragedy or even the problem of terrorism. It gets to the heart of why we punish criminals -- and why we sometimes execute murderers. The answer we give will tell us something important about how we want the law itself to work. Begin with a striking fact: In many traditional legal systems, the decision whether to execute a murderer lay exclusively with the victim’s family.

An op-ed by Noah Feldman. More than any president since Franklin Delano Roosevelt, Barack Obama has seen his signature programs blocked or impeded by the courts. In the latest episode, a federal appeals court in New Orleans heard arguments Friday about what to do about his executive action on immigration, which has been blocked by a single district judge in Texas. Similar judicial roadblocks have profoundly affected Obama's efforts in health care, environmental protection and Internet regulation. So it's worth asking: What's going on? Why has the judiciary taken such a big role in opposing the president’s efforts to make policy? To find another president whose efforts have been so affected by the courts, you have to go back more than 80 years, to the first New Deal.