Noah Feldman

An op-ed by Noah Feldman. The Barack Obama administration has said it won’t reconsider the long-standing rule against paying ransoms in its review of policy concerning U.S. citizens kidnapped by terrorists abroad. That’s a mistake -- morally, politically and legally. In theory, it’s great to say that the U.S. government doesn’t negotiate with terrorists. In practice, we negotiate with terrorists all the time. And it’s outrageous that family members of kidnapping victims would be threatened with criminal prosecution for trying to save their loved ones' lives. The hostage-policy review should air these issues. If it doesn’t, then it will be seriously flawed.

An op-ed by Noah Feldman. Talk of President Barack Obama’s immigration initiative has slowed now that the program is stalled in court, and may not be implemented until the end of his term, if at all. But this week, the Supreme Court decided an immigration case, Mellouli v. Lynch, that has meaningful implications for potential deportees convicted of crimes. The case made few headlines, because its consequences weren’t obvious to nonspecialists. Nevertheless, on close reading, the case matters -- and it raises important questions about how the U.S. decides whom to deport.

An op-ed by Noah Feldman. The proposed USA Freedom Act passed by the House is far from perfect -- but it does make some potentially meaningful improvements to move the U.S. away from a system of secret legal decisions made by a court that only hears the government’s side of the argument. Unfortunately, Senate Republicans under Majority Leader Mitch McConnell have proposed two amendments that would gut the act’s reforms to the existing bad system. It’s worth taking note of both, because both go to the very essence of what it means to be governed under the rule of law.

An op-ed by Noah Feldman. Should the U.S. be the international sheriff, enforcing its laws aggressively across borders to assure fairness and fight corruption? The prosecution of FIFA, the world's soccer governing body, has been met with mostly positive reaction (apart from the cynical Vladimir Putin) -- which supports a broad use of this power. The U.S. Supreme Court now has the chance to decide whether it will consider an analogous issue in the context of an antitrust suit brought by Motorola Mobility: Do U.S. laws authorizing private antitrust lawsuits extend to cartels that sell to subsidiaries of U.S. companies?

An op-ed by Noah Feldman. Striking a blow not only for religious liberty, but also for diverse standards of beauty, the U.S. Supreme Court decided Monday that Abercrombie & Fitch could not deny employment to a young woman because she wears a headscarf for religious reasons. The court also clarified that the job applicant, Samantha Elauf, didn't have to tell her interviewer that she needed a religious accommodation. If the company chose not to hire her because it didn't want to make an accommodation by allowing her to wear the headscarf, that amounted to prohibited religious discrimination.

An op-ed by Noah Feldman. The U.S. Supreme Court has reversed the conviction of Anthony Elonis, the would-be rapper who threatened to kill his wife, an FBI agent and others in a series of poetic Facebook postings. The decision managed to avoid ruling on the ambiguity of poetic threats, and Elonis is almost certain to be retried. Yet because the court left open exactly what will have to be proved at his retrial, Elonis’s case may drag on.

An op-ed by Noah Feldman. Dennis Hastert has a secret -- one he was willing to pay $3.5 million to keep quiet, and which the U.S. government is also now hiding. Federal prosecutors have indicted Hastert on charges of structuring cash withdrawals to avoid bank reporting and then lying to them about it. Yet even as the indictment paints an implicit picture of blackmail, the government has apparently agreed with Hastert’s lawyers to suppress whatever was so embarrassing that Hastert was willing to break the law to hush it up. There's something very worrisome about the government secrecy here -- particularly in conjunction with the criminal prosecution on the morally mild charge of withdrawal structuring. I’d sum up the secrecy problem this way: Either Hastert did something terrible, in which case the government shouldn't be suppressing it, or Hastert was being unjustifiably blackmailed, in which case the government shouldn't be prosecuting him for breaking the withdrawal laws to avoid ruin.

An op-ed by Noah Feldman. Is Thursday's $1.2 billion antitrust settlement between the Federal Trade Commission and Teva Pharmaceutical Industries a victory for consumers? Or is it a sign of government enforcement run amok? The answer to that question, it turns out, goes back to a 2013 U.S. Supreme Court case, FTC v. Actavis, in which five justices allowed the FTC to pursue a new kind of antitrust litigation. And the issue at the heart of that case was fascinating: What happens when the good kind of monopoly created by a patent runs headlong into the bad kind of monopoly created by collusion between merchants?

An op-ed by Noah Feldman. Does the Constitution guarantee one person, one vote? Or is it one citizen, one vote? This deceptively simple question is actually profound -- and the U.S. Supreme Court has agreed to decide it in the term that will begin in October. The answer will define the nature of American democracy for generations to come.

An op-ed by Noah Feldman. It wasn't exactly extraordinary rendition. But when Swiss police arrested seven officials of FIFA, the international football federation, for extradition to the U.S., there were some echoes of the secret terrorism arrests. Soccer is a global game, and it matters more to almost everyone than to Americans. So why is the U.S. acting as the international sheriff and grabbing up non-U.S. citizens to try them domestically for corrupting the sport worldwide? And more to the point, why is this legal? It turns out the legal basis for the FIFA prosecutions isn't all that simple or straightforward -- and therein lies a tale of politics and sports. The prosecutions are being brought under RICO, the Racketeer Influenced and Corrupt Organizations Act of 1970, which was designed to prosecute crime syndicates that had taken over otherwise lawful organizations.

An op-ed by Noah Feldman. Word that the Department of Justice has reached a settlement with the Cleveland Division of Police ought to be reassuring … right? Someone must’ve thought so, given that the news was leaked over the holiday weekend. The timing was presumably intended to counteract public outrage at a judge’s acquittal of Officer Michael Brelo, who was involved in a chase in which an unarmed black couple died after being shot at 137 times. There are important reasons for the Justice Department to get involved and rein in rogue police departments. Yet we shouldn’t get too complacent when we hear that the department has settled with police in the spotlight. Federal supervision isn’t the answer to the problems facing America’s police departments -- better political participation is.

An op-ed by Noah Feldman. It’s official: The Boy Scouts of America, headed by former Secretary of Defense Robert Gates, thinks the U.S. Supreme Court is about to create a right to gay marriage. There’s no other logical explanation for why they chose Thursday to announce that they plan to stop banning gay scoutmasters. For the Boy Scouts, this decision isn’t about getting ahead of the curve. It’s about coming out from behind the curve at the last minute. For 15 years, the Boy Scouts have been synonymous with anti-gay discrimination, ever since the Supreme Court’s 2000 decision in Boy Scouts of America v. Dale. That landmark case established the principle that there’s a constitutional right of free association that allows private groups to discriminate in membership -- provided the discrimination is intentional and at the core of their expressive mission.

An op-ed by Noah Feldman. Asia has gone nuts for nukes this week. On the heels of a Pentagon report that China is loading multiple warheads onto its intercontinental missiles, North Korea announced Wednesday that it has developed warheads of its own, making the transition from a nuclear-capable power to a nuclear-loaded one. The North Koreans may be lying or exaggerating, of course. But even so, the announcement augurs a new stage in the complex relationship between China and North Korea.

An op-ed by Noah Feldman. “Mad Men” may be over, but no one told Xi Jinping. China’s decision to put multiple warheads into its intercontinental ballistic missiles, an approach traditionally associated with a first-strike threat, is projecting China’s stance back into a Cold War mindset. The development is symbolically significant, because China has had multiple warhead technology, known as MIRV, for years, but has never before chosen to deploy it. The decision puts the U.S. on notice that China won’t react passively to increasing containment efforts in the Pacific. And it also tells a domestic audience that President Xi’s vision of the “Chinese dream” isn't simply economic but also deeply nationalistic and even militaristic.

An op-ed by Noah Feldman. The fall of the Iraq city of Ramadi to Islamic State is significant -- but not because of the strategic importance of the capital of the Anbar province. Rather, the failure of Iraq's official security forces emphasizes a fundamental quandary facing the anti-Islamic State coalition. If Islamic State is to be defeated, there must be effective ground troops. Right now, the only effective ground troops outside of Iraqi Kurdistan seem to be Shiite militias with close ties to Iran.

An op-ed by Noah Feldman. The U.S. Supreme Court was mostly in cleanup mode on Monday, disposing of six cases, four of them unanimously and a fifth almost unanimously. In the sixth case, the court decided that Maryland can't double tax certain income earned by its residents out-of-state -- and that opinion drew one of the strangest 5-4 lineups I've ever seen. The majority in Comptroller v. Wynne was written by Justice Samuel Alito, who was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Stephen Breyer and Sonia Sotomayor. Justice Ruth Bader Ginsburg wrote a dissent that was joined by Justices Antonin Scalia and Elena Kagan, while Justice Clarence Thomas dissented separately and joined in a separate concurrence by Scalia. If you're counting at home, that means three conservatives and two liberals on one side, with two liberals and two conservatives on the other. What, exactly, was going on here?

An op-ed by Noah Feldman. In retrospect, it seems inevitable that Boston Marathon bomber Dzhokhar Tsarnaev would get the death penalty. He's a self-acknowledged terrorist who killed and maimed adults and children in the middle of a major American city, which happens to be my own. The jury that sentenced him was limited to citizens who apparently believed that capital punishment was justified under at least some circumstances. If he's not going to be sentenced to death, who is? Yet I confess that, despite this ironclad logic, I still feel surprised and unsettled by the verdict -- because here in Massachusetts, where I was born and have lived most of my life, the death penalty has over the last several generations come to seem distant, foreign and unfamiliar.

An op-ed by Noah Feldman. An Amtrak train derailed and the Vatican recognized Palestine as a state, but in Boston, Deflategate is the only topic people want to debate. At the core of the discussion is the four-game suspension that the National Football League gave New England's Tom Brady for his general knowledge of deflating game balls and his non-cooperation with investigators. And the basic objection is this: How can Brady get four games for a game-ball infraction when Ray Rice got a two-game suspension for beating his wife? The objection from Patriots Nation is moral, not legal. Fans are responding to what feels like a basic problem in punitive justice: How can an act that’s morally worse be punished less severely than an act far less wrong?

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.